As
filed with the Securities and Exchange Commission on May 10, 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
NEPHROS,
INC.
(Exact
Name of Registrant as Specified in Its Charter)
| Delaware |
|
13-3971809
|
| (State
or Other Jurisdiction of |
|
(I.R.S.
Employer |
| Incorporation
or Organization) |
|
Identification
No.) |
380
Lackawanna Place
South
Orange, New Jersey 07079
(201)
343-5202
(Address,
Including Zip Code, and Telephone Number,
Including
Area Code, of Registrant’s Principal Executive Offices)
| Judy
Krandel |
|
Copies
to: |
| Chief
Financial Officer |
|
Christopher
J. Melsha, Esq. |
| Nephros,
Inc. |
|
Fredrikson
& Byron P.A. |
| 380
Lackawanna Place |
|
60
South Sixth Street |
| South
Orange, New Jersey 07079 |
|
Suite
1500 |
| (201)
343-5202 |
|
Minneapolis,
Minnesota 55402 |
| (Name,
Address, Including Zip Code, and Telephone |
|
Telephone:
(612) 492-7369 |
| Number,
Including Area Code, of Agent for Service) |
|
Facsimile:
(612) 492-7077 |
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following
box. ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, 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 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.
| Large
accelerated filer ☐ |
|
Accelerated
filer ☐ |
| Non-accelerated
filer ☒ |
|
Smaller
reporting company ☒ |
| |
|
Emerging
growth company ☐ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided to Section 7(a)(2)(B) of the Securities Act. ☐
The
Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date
as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
| The
information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is
not soliciting an offer to buy these securities where the offer or sale is not permitted. |
SUBJECT
TO COMPLETION DATED MAY 10, 2024
PROSPECTUS
NEPHROS,
INC.
$50,000,000
Common
Stock
Preferred
Stock
Warrants
Debt
Securities
Units
The
securities covered by this prospectus include shares of our common stock; shares of preferred stock; warrants to purchase shares of our
common stock, preferred stock and/or debt securities; debt securities consisting of debentures, notes or other evidences of indebtedness;
or units consisting of any combination of such securities. We may offer the securities from time to time in one or more series or issuances
directly to our stockholders or purchasers, or through agents, underwriters or dealers as designated from time to time.
This
prospectus provides a general description of the securities we may offer. Each time we sell securities, we will provide specific terms
of the securities offered in a supplement to this prospectus. Such a prospectus supplement may also add, update or change information
contained in this prospectus. This prospectus may not be used to consummate a sale of securities unless accompanied by the applicable
prospectus supplement. We will sell these securities directly to our stockholders or to purchasers or through agents on our behalf or
through underwriters or dealers as designated from time to time. If any agents or underwriters are involved in the sale of any of these
securities, the applicable prospectus supplement will provide the names of the agents or underwriters and any applicable fees, commissions
or discounts.
Our
common stock is traded on The Nasdaq Capital Market under the symbol “NEPH.” On May 7, 2024, the closing price of our common
stock was $2.20.
As
of May 7, 2024, the aggregate market value of our outstanding common stock held by non-affiliates was approximately $14,689,836, which
amount is based on 10,544,139 shares of common stock outstanding as of May 7, 2024, of which 6,677,198 shares of common stock were held
by non-affiliates, and a per share price of $2.20, which was the last reported sale price of our common stock on The Nasdaq Capital Market
on May 7, 2024. We have not offered any securities pursuant to General Instruction I.B.6 of Form S-3 during the prior 12 calendar month
period that ends on and includes the date of this prospectus. Pursuant to General Instruction I.B.6 of Form S-3, so long as the aggregate
market value of our outstanding common stock held by non-affiliates remains below $75,000,000, in no event will we sell securities under
the registration statement, of which this prospectus is a part, in a public primary offering with a value of more than one-third of the
aggregate market value of our outstanding common stock held by non-affiliates in any 12-month period.
Investing
in our securities involves substantial risks. See “RISK FACTORS” beginning on page 6 of this prospectus. You should carefully
read this prospectus, the documents incorporated herein, and the applicable prospectus supplement before making any investment decision.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed
upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this prospectus is , 2024.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we have filed with the Securities and Exchange Commission (the “SEC”
or the “Commission”), utilizing a “shelf” registration process. Under this shelf registration process, we may
offer to sell any combination of the securities described in this prospectus in one or more offerings up to a total dollar amount of
$50,000,000. This prospectus provides you with a general description of the securities we may offer. Each time we sell securities under
this shelf registration, we will provide a prospectus supplement that will contain specific information about the terms of such offering.
The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus
and any applicable prospectus supplement, including all documents incorporated herein by reference, together with additional information
described under “Where You Can Find More Information” below.
We
have not authorized any dealer, agent or other person to give any information or to make any representation other than those contained
or incorporated by reference in this prospectus and any accompanying prospectus supplement. You must not rely upon any information or
representation not contained or incorporated by reference in this prospectus or an accompanying prospectus supplement. This prospectus
and the accompanying prospectus supplement, if any, do not constitute an offer to sell or the solicitation of an offer to buy any securities
other than the registered securities to which they relate, nor do this prospectus and any accompanying prospectus supplement constitute
an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such
offer or solicitation in such jurisdiction. You should not assume that the information contained in this prospectus and any accompanying
prospectus supplement, if any, is accurate on any date subsequent to the date set forth on the front of the document or that any information
we have incorporated by reference is correct on any date subsequent to the date of the document incorporated by reference, even though
this prospectus and any accompanying prospectus supplement is delivered or securities are sold on a later date.
Unless
the context otherwise requires, we refer to Nephros, Inc. and its consolidated subsidiaries as “Nephros,” the “Company,”
“we,” “our,” and “us.”
OUR
COMPANY
Overview
We
are a commercial-stage company that develops and sells high performance water purification products to the medical device and commercial
markets.
In
medical markets, we sell water filtration products. Our medical water filters, mostly classified as ultrafilters, are used primarily
by hospitals for the prevention of infection from waterborne pathogens, such as legionella and pseudomonas, and in dialysis centers for
the removal of biological contaminants from water and bicarbonate concentrate. Because our ultrafilters capture contaminants as small
as 0.005 microns in size, they minimize exposure to a wide variety of bacteria, viruses, fungi, parasites, and endotoxins.
In
commercial markets, we manufacture and sell water filters that improve the taste and odor of water and reduce biofilm, bacteria, and
scale build-up in downstream equipment. Our products are marketed primarily to the food service, hospitality, convenience store, and
health care markets. These commercial products are also marketed into medical markets, as supplemental filtration to our medical filters.
We
were founded in 1997 by healthcare professionals affiliated with Columbia University Medical Center/New York-Presbyterian Hospital to
develop and commercialize an alternative method to hemodialysis. We have extended our filtration technologies to meet the demand for
liquid purification in other areas, in particular, water purification.
Our
Products
Water
Filtration Products
We
develop and sell water filtration products used in both medical and commercial applications. Our water filtration products employ multiple
filtration technologies, as described below.
In
medical markets, our primary filtration mechanism is to pass liquids through the pores of polysulfone hollow fiber. Our filters’
pores are significantly smaller than those of competing products, resulting in highly effective elimination of waterborne pathogens,
including legionella bacteria (the cause of Legionnaires disease) and viruses, which are not eliminated by most other microbiological
filters on the market. Additionally, the fiber structure and pore density in our hollow fiber enables significantly higher flow rates
than in other polysulfone hollow fiber.
Our
primary sales strategy in medical markets is to sell through value-added resellers (“VARs”). Leveraging VARs has enabled
us to rapidly expand our access to target customers with limited sales staff expansion. In addition, while we are currently focused on
medical markets, the VARs that support these customers also support a wide variety of commercial and industrial customers. We believe
that our VAR relationships have and will continue to facilitate growth in filter sales outside of the medical industry.
In
commercial markets, we develop and sell our filters, for which carbon-based absorption is the primary filtration mechanism. These products
allow us to improve water’s odor and taste, to reduce scale and heavy metals, and to reduce other water contaminants for customers
who are primarily in the food service, convenience store, and hospitality industries. These commercial products are also sold into medical
markets, as supplemental filtration to our medical filters.
In
commercial markets, our model combines both direct and indirect sales. Through our employee sales staff, we have sold products directly
to a number of convenience stores, hotels, casinos, and restaurants. We have also signed an agreement with a partner to be the exclusive
distributor to resell select water filters and related products to customers in the commercial food and beverage markets subject to meeting
certain minimum thresholds.
Target
Markets
Our
ultrafiltration products currently target the following markets:
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Hospitals
and Other Healthcare Facilities: Filtration of water for washing and drinking as an aid in infection control. The filters produce
water that is suitable for wound cleansing, cleaning of equipment used in medical procedures, and washing of surgeons’ hands. |
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Dialysis
Centers and Home/Portable Dialysis Machines: Filtration of water or bicarbonate concentrate used in hemodialysis. |
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Commercial
Facilities: Filtration and purification of water for consumption, including for use in ice machines and soft drink dispensers. |
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Military
and Outdoor Recreation: Individual water purification devices used by soldiers and backpackers to produce drinking water in the field,
as well as filters customized to remote water processing systems. |
Hospitals
and Other Healthcare Facilities. Nephros filters are a leading tool used to provide proactive protection to patients in high-risk
areas (e.g., ice machines, surgical rooms, NICUs) and reactive protection to patients in broader areas during periods of water pathogen
outbreaks. Our products are used in hundreds of medical facilities to aid in infection control, both proactively and reactively.
As
of 2023, according to the American Hospital Association, there are approximately 6,129 hospitals in the U.S., with approximately 920,000
beds. Over 34 million patients were admitted to these hospitals. The U.S. Department of Health and Human Services estimates that healthcare
associated infections (“HAI”) occur in approximately 1 out of every 31 hospital patients, which calculates to over one million
patients in 2023. HAIs affect patients in hospitals or other healthcare facilities and are not present or incubating at the time of admission.
They also include infections acquired by patients in the hospital or facility, but appearing after discharge, and occupational infections
among staff. Many HAIs are caused by waterborne bacteria and viruses that can thrive in aging or complex plumbing systems often found
in healthcare facilities.
In
January 2022, the Center for Clinical Standards and Quality at the Centers for Medicare and Medicaid Services (“CMS”) expanded
its requirements – originally implemented in 2017 – for facilities to develop policies and procedures that inhibit the growth
and spread of legionella and other opportunistic pathogens in building water systems. In this 2022 update, CMS requires teams to be assigned
to the development of formal water management plans (“WMPs”), as well as detailed documentation regarding the development
of the WMPs and their execution. CMS surveyors regularly review policies, procedures, and reports documenting water management implementation
results to verify that facilities are compliant with these requirements. We believe that these CMS regulations may have a positive impact
on the sale of our HAI-inhibiting ultrafilters.
We
currently have FDA 510(k) clearance on the following portfolio of medical device products for use in the hospital setting to aid in infection
control:
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The
DSU-H and SSU-H are in-line, 0.005-micron ultrafilters that provide dual- and single-stage protection, respectively, from waterborne
pathogens. They are primarily used to filter potable water feeding ice machines, sinks, and medical equipment, such as endoscope
washers and surgical room humidifiers. The DSU-H has an up to 6-month product life in a typical hospital setting, while the SSU-H
has an up to 3-month product life. |
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The
S100 is a point-of-use, 0.01-micron microfilter that provides protection from waterborne pathogens. The S100 is primarily used to
filter potable water feeding sinks and showers. The S100 has an up to 3-month product life when used in a hospital setting. |
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The
HydraGuardTM and HydraGuardTM - Flush are 0.005-micron cartridge ultrafilters that provide single-stage protection
from waterborne pathogens. The HydraGuard ultrafilters are primarily used to filter potable water feeding ice machines and medical
equipment, such as endoscope washers and surgical room humidifiers. The HydraGuard has an up to 6-month product life and the HydraGuard
- Flush has an up to 12-month product life when used in a hospital setting. |
Our
complete hospital infection control product line, including in-line, and point-of-use can be viewed on our website at https://www.nephros.com/infection-control/.
We are not including the information on our website as a part of, nor incorporating it by reference into, this prospectus.
Dialysis
Centers - Water/Bicarbonate. In the dialysis water market, Nephros ultrafiltration products are among the highest performing
products on the market. The DSU-D, SSU-D and the SSUmini have become the standard endotoxin filter in many portable reverse osmosis systems.
The EndoPur®, our large-format ultrafilter targeted at dialysis clinic water systems, provides the smallest pore size
available.
To
perform hemodialysis, all dialysis clinics have dedicated water purification systems to produce water and bicarbonate concentrate, two
essential ingredients for making dialysate, the liquid that removes waste material from the blood. According to the National Institute
of Health, there are approximately 7,100 dialysis clinics in the United States servicing approximately 500,000 patients annually. We
estimate that there are over 100,000 hemodialysis machines in operation in the United States.
We currently have FDA 510(k) clearance on the following portfolio of medical device products for use in the dialysis setting to aid in
bacteria, virus, and endotoxin retention:
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The
DSU-D, SSU-D and SSUmini are in-line, 0.005-micron ultrafilters that provide protection from bacteria, viruses, and endotoxins. All
of these products have an up to 12-month product life in the dialysis setting and are used to filter water following treatment with
a reverse osmosis (“RO”) system, and to filter bicarbonate concentrate. These ultrafilters are primarily used in the
water lines and bicarbonate concentrate lines leading into dialysis machines, and as a polish filter for portable RO machines. |
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The
EndoPur is a 0.005-micron cartridge ultrafilter that provides single-stage protection from bacteria, viruses, and endotoxins. The
EndoPur has an up to 12-month product life in the dialysis setting and is used to filter water following treatment with an RO system.
More specifically, the EndoPur is used primarily to filter water in large RO systems designed to provide ultrapure water to an entire
dialysis clinic. The EndoPur is a cartridge-based, “plug and play” market entry that requires no plumbing at installation
or replacement. The EndoPur is available in 10”, 20”, and 30” configuration. |
Commercial
and Industrial Facilities. Our commercial NanoGuard® product line accomplishes ultrafiltration via small pore
size (0.005 micron) technology, filtering bacteria and viruses from water. In addition, our commercial filtration offerings include technologies
that are primarily focused on improving odor and taste and on reducing scale and heavy metals from filtered water.
Our
commercial market focus is on the hotel, restaurant, and convenience store markets. In March 2022, we entered into an agreement to provide
water filtration systems to an organization that services approximately 3,000 Quick Service Restaurants (“QSR”). Effective
January 1, 2023, we entered into a new supply agreement with this commercial partner, which superseded the March 2022 agreement. Under
the January 2023 agreement, we engaged this commercial partner to be our exclusive distributor to the food, beverage and hospitality
industries. We continue to pursue other national accounts, which, over time, may result in step-change increases in commercial market
revenue.
Over
time, we believe that the same water safety management programs currently underway at medical facilities may migrate to commercial markets.
As the epidemiology of waterborne pathogens expands, links to contamination sources will become more efficient and the data more readily
available. In cases where those sources are linked to restaurants, hotels, office buildings and residential complexes, the corporate
owners of those facilities will likely face increasing liability exposure. We expect that building owners will come to understand ASHRAE-188,
which outlines risk factors for buildings and their occupants, and provides water safety management guidelines. We believe, in time,
most commercial buildings will need to follow the basic requirements of ASHRAE-188: create a water management plan, perform routine testing,
and establish a plan to treat the building in the event of a positive test.
As
demand for water testing and microbiological filtration grows, we will be ready to deploy our expertise and solutions based on years
of experience servicing the medical market. We believe that we have an opportunity to offer unique expertise and products to the commercial
market, and that our future revenue from the commercial market could even surpass our infection control revenue.
We
currently market the following portfolio of proprietary products for use in the commercial, industrial, and food service settings:
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The
NanoGuard set of products are in-line, 0.005-micron ultrafilter that provides dual-stage retention of any organic or inorganic particle
larger than 15,000 Daltons. NanoGuard products are designed to fit a variety of existing plumbing configurations, including 10”
and 20” standard housings, and Nephros and Everpure® manifolds. Included in the NanoGuard product line are both conventional
and flushable filters. |
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The
Nephros line of commercial filters provides a variety of technology solutions that improve water quality in food service, convenience
store, hospitality, and industrial applications. Nephros filters improve water taste and odor, and reduce sediment, dirt, rust particles
and other solids, chlorine and heavy minerals, lime scale build-up, and both particulate lead and soluble lead. |
Nephros
commercial products combine effectively with NanoGuard ultrafiltration technologies to offer full-featured solutions to the commercial
water market, including to existing users of Everpure filter manifolds.
Hemodiafiltration
(HDF) Systems and Specialty Renal Products, Inc.
The
current standard of care in the United States for patients with chronic renal failure is hemodialysis (“HD”), a process in
which toxins are cleared via diffusion. Patients typically receive HD treatments at least 3 times weekly for 3-4 hours per treatment.
HD is most effective in removing smaller, easily diffusible toxins. For patients with acute renal failure, the current standard of care
in the United States is hemofiltration (“HF”), a process where toxins are cleared via convection. HF offers a much better
removal of larger sized toxins when compared to HD; however, HF treatment is more challenging for patients, as it is performed daily,
and typically takes 12-24 hours per treatment.
Our
company was originally founded to develop and commercialize a hemodiafiltration (“HDF”) medical device. HDF is an alternative
dialysis modality that combines the benefits of HD and HF into a single therapy by clearing toxins using both diffusion and convection.
Though not widely used in the United States, HDF is prevalent in Europe and is performed for a growing number of patients. Clinical experience
and literature demonstrate that HDF’s benefits, among other factors, include enhanced clearance of middle and large molecular weight
toxins, improved patient survival, reduced incidence of dialysis-related amyloidosis, improved patient quality of life and reduced hospitalizations
and overall length of stays.
Our
original HDF device (“HDF1”) was cleared by the U.S. Food and Drug Administration (“FDA”) for the treatment of
patients with chronic renal failure in 2012, but did not gain market acceptance due to, among other reasons, the feeling that it was
too difficult to use.
We
previously held a majority stake in Specialty Renal Products, Inc. (“SRP”), a development-stage medical device company that
was focused primarily on developing hemodiafiltration (“HDF”) technology. In May 2022, SRP received510(k) clearance from
the FDA for SRP’s second-generation model of the OLpūrH2H Hemodiafiltration System, which enables nephrologists to provide
HDF treatment to patients with end stage renal disease. In January 2023, SRP management began exploring strategic partnerships to support
a commercial launch of the HDF product but was unsuccessful in identifying a partner. By late February 2023, SRP had nearly exhausted
its capital resources and, due to its limited capital and lack of prospects for securing a strategic partnership or additional financing,
the board of directors of SRP adopted a plan in March 2023 to wind down SRP operations, liquidate its remaining assets and dissolve the
company. That plan was approved by SRP’s stockholders in March 2023, and in April 2023, SRP filed a certificate of dissolution
with the State of Delaware. SRP’s cash resources were sufficient to satisfy all of its outstanding liabilities other than its obligations
to us under a loan with an outstanding balance of approximately $1.5 million. Accordingly, SRP assigned to Nephros all of its remaining
assets, including its intellectual property rights in the HDF2 device, in satisfaction of its outstanding loan balance. Although we have
no current plans to do so, we may re-evaluate opportunities for HDF in the future.
Corporate
Information
We
were incorporated under the laws of the State of Delaware in April 1997. Our principal executive offices are located at 380 Lackawanna
Place, South Orange, New Jersey 07079, and our telephone number is (201) 343-5202. We also have an office in Whippany, New Jersey. For
more information about Nephros, please visit our website at www.nephros.com. Please note, however, that we have not incorporated
any other information by reference herein from our website, other than the documents listed below under the heading “Incorporation
of Certain Documents by Reference.”
RISK
FACTORS
An
investment in our securities involves a high degree of risk. You should consider carefully the risks, uncertainties and assumptions discussed
under the heading “Risk Factors” in our Annual Report on Form 10-K for the fiscal year ended December 31, 2023, which is
incorporated herein by reference, as updated or superseded by the risks and uncertainties described under similar headings in the other
documents that are filed after the date hereof and incorporated by reference into this prospectus. The risks and uncertainties we have
described are not the only ones we face. Additional risks and uncertainties not presently known to us or that we currently deem immaterial
may also affect our operations. If any of these risks were to occur, our business, financial condition, and results of operations could
be severely harmed. This could cause the trading price of our common stock to decline, and you could lose all or part of your investment.
In
addition, any prospectus supplement applicable to each offering of our securities will contain a discussion of the risks applicable to
such an investment in us. Prior to making a decision about investing in our securities, you should carefully consider the specific risk
factors discussed under the heading “Risk Factors” in the applicable prospectus supplement, together with all of the other
information contained or incorporated by reference in such prospectus supplement or appearing or incorporated by reference in this prospectus.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
The
Private Securities Litigation Reform Act of 1995 provides a “safe harbor” for forward-looking statements. Certain statements
in this prospectus constitute “forward-looking statements.” Such statements include those regarding our ability to increase
our revenue, limit our expenses and other expected operating results, including our ability and the timing of our business generating
positive cash flows from operations, the adequacy of our existing capital resources to fund our operations, our belief that we will maintain
good relationships with our suppliers, distributors and customers, and other statements that are not historical facts, including statements
that may be preceded by the words “intends,” “may,” “will,” “plans,” “expects,”
“anticipates,” “projects,” “predicts,” “estimates,” “aims,” “believes,”
“hopes,” “potential” or similar words. Forward-looking statements are not guarantees of future performance, are
based on certain assumptions and are subject to various known and unknown risks and uncertainties, many of which are beyond our control.
Actual results may differ materially from the expectations contained in the forward-looking statements. Factors that may cause such differences
include, but are not limited to, the risks that:
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we
face significant challenges in maintaining and increasing market acceptance of our products, which could adversely affect our potential
sales and revenues; |
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product-related
deaths or serious injuries or product malfunctions could trigger recalls, class action lawsuits and other events that could cause
us to incur expenses and may also limit our ability to generate revenues from such products; |
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we
face potential liability associated with the production, marketing and sale of our products, and the expense of defending against
claims of product liability could materially deplete our assets and generate negative publicity, which could impair our reputation; |
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to
the extent our products or marketing materials are found to violate any provisions of the U.S. Food, Drug and Cosmetic Act (the “FDC
Act”) or any other statutes or regulations, we could be subject to enforcement actions by the FDA or other governmental agencies; |
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we
may not be able to obtain funding if and when needed or on terms favorable to us in order to continue operations; |
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we
may not have sufficient capital to successfully implement our business plan; |
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we
may not be able to effectively market our products; |
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we
may not be able to sell our water filtration products or chronic renal failure therapy products at competitive prices or profitably; |
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we
may encounter problems with our suppliers, manufacturers and distributors; |
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we
may encounter unanticipated internal control deficiencies or weaknesses or ineffective disclosure controls and procedures; |
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we
may not be able to obtain appropriate or necessary regulatory approvals to achieve our business plan; |
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we
may not be able to secure or enforce adequate legal protection, including patent protection, for our products; and |
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we
may not be able to achieve sales growth in key geographic markets. |
More
detailed information about us and the risk factors that may affect the realization of forward-looking statements is set forth in our
filings with the SEC, including our periodic reports filed with the SEC. We urge investors and security holders to read those documents
free of charge at the SEC’s web site at www.sec.gov. We do not undertake to publicly update or revise our forward-looking
statements as a result of new information, future events or otherwise, except as required by law.
USE
OF PROCEEDS
Except
as otherwise provided in the applicable prospectus supplement, we intend to use the net proceeds from the sale of the securities covered
by this prospectus for general corporate purposes, which may include working capital, capital expenditures, research and development
expenditures, commercial expenditures, acquisitions of new technologies or businesses, and investments. Additional information on the
use of net proceeds from the sale of securities covered by this prospectus may be set forth in any prospectus supplement relating to
the specific offering.
PLAN
OF DISTRIBUTION
We
may sell the securities offered through this prospectus in any one or more of the following ways from time to time:
| ● | through
agents; |
| ● | to
or through underwriters; |
| ● | through
brokers or dealers; |
| ● | in
“at the market offerings” within the meaning of Rule 415(a)(4) under the Securities
Act of 1933, as amended (the “Securities Act”), to or through market maker or
into an existing trading market, on an exchange or otherwise; |
| ● | directly
by us to purchasers, including through a specific bidding, auction or other process; |
| ● | through
a combination of any of these methods of sale; or |
| ● | we
may issue the securities as a dividend or distribution or in a subscription rights offering
to our existing security holders. |
The
applicable prospectus supplement will contain the terms of the transaction, including the method of distribution of the securities offered,
the proceeds we will receive from the sale, the name or names of any underwriters, dealers, agents and the respective amounts of securities
underwritten or purchased by them, the initial public offering price of the securities, and the applicable agent’s commission,
dealer’s purchase price or underwriter’s discount. Any dealers and agents participating in the distribution of the securities
may be deemed to be underwriters, and compensation received by them on resale of the securities may be deemed to be underwriting discounts.
Any
initial offering price, dealer purchase price, discount or commission may be changed from time to time.
The
securities may be distributed from time to time in one or more transactions, at negotiated prices, at a fixed price or fixed prices (that
may be subject to change), at market prices prevailing at the time of sale, or at various prices determined at the time of sale.
Offers
to purchase the securities may be solicited directly by us or by agents designated by us from time to time. Unless otherwise indicated
in the prospectus supplement, any such agent will use its commercially reasonable efforts to solicit purchases for the period of its
appointment or to sell the securities on a continuing basis. Agents may receive compensation in the form of commissions, discounts or
concessions from us. Agents may also receive compensation from the purchasers of the securities to whom they sell as principals. Each
particular agent will receive compensation in amounts negotiated in connection with the sale, which might be in excess of customary commissions.
Any such agent may be deemed to be an underwriter, as that term is defined in the Securities Act, of the securities so offered and sold.
Accordingly, any commission, discount or concession received by them and any profit on the resale of the securities purchased by them
may be deemed to be underwriting discounts or commissions under the Securities Act. We have not entered into any agreements, understandings
or arrangements with any underwriters or broker-dealers regarding the sale of any securities. As of the date of this prospectus, there
are no special selling arrangements between any broker-dealer or other person and us. No period of time has been fixed within which the
securities will be offered and sold.
If
underwriters are utilized in the sale of any securities in respect of which this prospectus is being delivered, such securities will
be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated
transactions, at fixed public offering prices or at varying prices determined by the underwriters at the time of sale. The securities
may be offered to the public either through underwriting syndicates represented by managing underwriters or directly by one or more underwriters.
If any underwriter or underwriters are utilized in the sale of the securities, unless otherwise indicated in the applicable prospectus
supplement, the obligations of the underwriters are subject to certain conditions precedent, and the underwriters will be obligated to
purchase all such securities if they purchase any of them.
If
a dealer is utilized in the sale of the securities in respect of which this prospectus is delivered, we will sell such securities to
the dealer as principal. The dealer may then resell such securities to the public at varying prices to be determined by such dealer at
the time of resale. Transactions through brokers or dealers may include block trades in which brokers or dealers will attempt to sell
shares as agent but may position and resell as principal to facilitate the transaction or in cross trades, in which the same broker or
dealer acts as agent on both sides of the trade. Any such dealer may be deemed to be an underwriter, as such term is defined in the Securities
Act, of the securities so offered and sold.
Offers
to purchase the securities may be solicited directly by us, and the sale thereof may be made by us, directly to institutional investors
or others who may be deemed to be underwriters within the meaning of the Securities Act with respect to any resale thereof.
Agents,
underwriters and dealers may be entitled under relevant agreements with us to indemnification by us against certain liabilities, including
liabilities under the Securities Act, or to contribution with respect to payments which such agents, underwriters and dealers may be
required to make in respect thereof. The terms and conditions of any indemnification or contribution will be described in the applicable
prospectus supplement.
Underwriters,
broker-dealers or agents may receive compensation in the form of commissions, discounts or concessions from us. Underwriters, broker-dealers
or agents may also receive compensation from the purchasers of shares for whom they act as agents or to whom they sell as principals,
or both. Compensation as to a particular underwriter, broker-dealer or agent will be in amounts to be negotiated in connection with transactions
involving shares and might be in excess of customary commissions. In effecting sales, broker-dealers engaged by us may arrange for other
broker-dealers to participate in the resales.
Unless
the applicable prospectus supplement states otherwise, any securities offered through this prospectus will be a new issue and, other
than the common stock, which is listed on the Nasdaq Capital Market, will have no established trading market. We may elect to list any
series of the securities on an exchange, and in the case of the common stock, on any additional exchange, but, unless otherwise specified
in the applicable prospectus supplement and/or other offering material, we shall not be obligated to do so. It is possible that one or
more underwriters may make a market in a class or series of the securities, but the underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be given as to the liquidity of, or the trading market for,
any of the securities.
Agents,
underwriters and dealers may engage in transactions with, or perform services for, us or our subsidiaries in the ordinary course of business.
Any
underwriter may engage in overallotment, stabilizing transactions, short covering transactions and penalty bids in accordance with Regulation
M under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Overallotment involves sales in excess of the
offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the
stabilizing bids do not exceed a specified maximum. Short covering transactions involve purchases of the securities in the open market
after the distribution is completed to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from
a dealer when the securities originally sold by the dealer are purchased in a covering transaction to cover short positions. Those activities
may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of
the activities at any time. An underwriter may carry out these transactions on the Nasdaq Capital Market, in the over-the-counter market
or otherwise. The underwriters or agents, as the case may be, are not required to engage in these activities and, if they engage in any
of these activities, may end any of these activities at any time without notice.
We,
the underwriters or other agents may engage in derivative transactions involving the securities. These derivatives may consist of short
sale transactions and other hedging activities. The underwriters or agents may acquire a long or short position in the securities, hold
or resell securities acquired and purchase options or futures on the securities and other derivative instruments with returns linked
to or related to changes in the price of the securities. In order to facilitate these derivative transactions, we may enter into security
lending or repurchase agreements with the underwriters or agents. The underwriters or agents may effect the derivative transactions through
sales of the securities to the public, including short sales, or by lending the securities in order to facilitate short sale transactions
by others. The underwriters or agents may also use the securities purchased or borrowed from us or others (or, in the case of derivatives,
securities received from us in settlement of those derivatives) to directly or indirectly settle sales of the securities or close out
any related open borrowings of the securities.
The
place and time of delivery for the securities will be set forth in the accompanying prospectus supplement. To comply with applicable
state securities laws, the securities offered by this prospectus will be sold, if necessary, in such jurisdictions only through registered
or licensed brokers or dealers. In addition, the securities may not be sold in some states absent registration or pursuant to an exemption
from applicable state securities laws.
DESCRIPTION
OF CAPITAL STOCK
The
following summary of the terms of our common stock is subject to and qualified in its entirety by reference to our Fourth Amended and
Restated Certificate of Incorporation and our Second Amended and Restated By-Laws, copies of which are on file with the SEC as exhibits
to previous SEC filings. Please refer to “Where You Can Find More Information” below for directions on obtaining these documents.
Our
authorized capital stock consists of 40,000,000 shares of common stock, par value $0.001 per share, and 5,000,000 shares of preferred
stock, par value $0.001 per share.
As
of May 7, 2024, we had issued and outstanding 10,544,139 shares of common stock. We currently have no preferred stock issued and outstanding.
Common
Stock
Holders
of our common stock are entitled to one vote for each share held of record on all matters submitted to a vote of the stockholders and
do not have cumulative voting rights. Accordingly, holders of a majority of the shares of our common stock entitled to vote in any election
of directors may elect all of the directors standing for election. Apart from preferences that may be applicable to any holders of preferred
stock outstanding at the time, holders of our common stock are entitled to receive dividends, if any, ratably as may be declared from
time to time by the Board out of funds legally available therefor. Upon our liquidation, dissolution or winding up, the holders of our
common stock are entitled to receive ratably our net assets available after the payment of all liabilities and liquidation preferences
on any outstanding preferred stock. Holders of our common stock have no preemptive, subscription, redemption or conversion rights, and
there are no redemption or sinking fund provisions applicable to our common stock. The rights, preferences and privileges of holders
of our common stock are subject to, and may be adversely affected by, the rights of the holders of shares of any series of preferred
stock which we may designate and issue in the future.
Our
Fourth Amended and Restated Certificate of Incorporation and our Second Amended and Restated By-Laws contain provisions that could have
the effect of discouraging potential acquisition proposals or tender offers or delaying or preventing a change of control of our company.
These provisions are as follows:
| ● | special
meetings of stockholders may be called only by the Board, the Chairman of the Board, the
President or any Vice President; |
| ● | our
board is a classified board, with three separate classes of directors each serving a three-year
term; and |
| ● | we
may issue, without stockholder approval, up to 5,000,000 shares of preferred stock that could
adversely affect the rights and powers of the holders of our common stock. |
We
are subject to the provisions of Section 203 of the General Corporation Law of the State of Delaware, an anti-takeover law. In general,
Section 203 prohibits a publicly held Delaware corporation from engaging in a “business combination” with an “interested
stockholder” for a period of three years after the date of the transaction in which the person became an interested stockholder,
unless the business combination is approved in a prescribed manner. For purposes of Section 203, a “business combination”
includes a merger, asset sale or other transaction resulting in a financial benefit to the interested stockholder, and an “interested
stockholder” is a person who owns 15% or more of the voting stock of a corporation, or any affiliate or associate of a corporation
who, within three years prior, did own 15% or more of the voting stock of that corporation.
Our
common stock is listed on the Nasdaq Capital Market under the symbol “NEPH.” As of December 31, 2023, there were approximately
44 holders of record of our common stock.
Preferred
Stock
Our
board is authorized to provide for the issuance of all or any of the shares of the preferred stock in one or more series, and to fix
the number of shares and to determine or alter for each such series, such voting powers, full or limited, or no voting powers, and such
designation, preferences, and relative, participating, optional, or other rights and such qualifications, limitations, or restrictions
thereof, as stated in our board’s resolutions.
Our
board is also authorized to increase or decrease the number of shares of any series subsequent to the issuance of shares of that series,
but not below the number of shares of such series then outstanding. The number of authorized shares of preferred stock may be increased
or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the
common stock, without a vote of the holders of the preferred stock, or of any series thereof, unless a vote of any such holders is required
pursuant to the terms of any certificate of designation filed with respect to any series of preferred stock.
The
authority possessed by our board to issue preferred stock could potentially be used to discourage attempts by third parties to obtain
control of us through a merger, tender offer, proxy contest or otherwise by making such attempts more difficult or more costly. Our board
may issue preferred stock with voting rights or conversion rights that, if exercised, could adversely affect the voting power of the
holders of common stock. There are no current agreements or understandings with respect to the issuance of preferred stock.
If
we offer a specific class or series of preferred stock under this prospectus, we will describe the terms of the preferred stock in the
prospectus supplement for such offering and will file a copy of the certificate establishing the terms of the preferred stock with the
SEC. To the extent required and applicable, this description will include:
| ● | the
title and stated value; |
| ● | the
number of shares offered, the liquidation preference per share and the purchase price; |
| ● | the
dividend rate(s), period(s) and/or payment date(s), or method(s) of calculation for such
dividends; |
| ● | whether
dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends
will accumulate; |
| ● | the
procedures for any auction and remarketing, if any; |
| ● | the
provisions for a sinking fund, if any; |
| ● | the
provisions for redemption, if applicable; |
| ● | any
listing of the preferred stock on any securities exchange or market; |
| ● | whether
the preferred stock will be convertible into our common stock, and, if applicable, the conversion
price (or how it will be calculated) and conversion period; |
| ● | whether
the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange
price (or how it will be calculated) and exchange period; |
| ● | voting
rights, if any, of the preferred stock; |
| ● | a
discussion of any material U.S. federal income tax considerations applicable to the preferred
stock; |
| ● | the
relative ranking and preferences of the preferred stock as to dividend rights and rights
upon liquidation, dissolution or winding up of the affairs of our company; and |
| ● | any
material limitations on issuance of any class or series of preferred stock ranking senior
to or on a parity with the series of preferred stock as to dividend rights and rights upon
liquidation, dissolution or winding up of our company. |
The
preferred stock offered by this prospectus, when issued, will not have, or be subject to, any preemptive or similar rights.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is V Stock Transfer, LLC. The transfer agent and registrar for any series or class
of preferred stock will be set forth in each applicable prospectus supplement.
DESCRIPTION
OF WARRANTS
We
may issue warrants to purchase shares of our common stock, preferred stock and/or debt securities in one or more series together with
other securities or separately, as described in each applicable prospectus supplement. Below is a description of certain general terms
and provisions of the warrants that we may offer. Particular terms of the warrants will be described in the applicable warrant agreements
and the applicable prospectus supplement for the warrants.
The
applicable prospectus supplement will contain, where applicable, the following terms of and other information relating to the warrants:
| ● | the
specific designation and aggregate number of, and the price at which we will issue, the warrants; |
| ● | the
currency or currency units in which the offering price, if any, and the exercise price are
payable; |
| ● | the
designation, amount and terms of the securities purchasable upon exercise of the warrants; |
| ● | if
applicable, the exercise price for shares of our common stock and the number of shares of
common stock to be received upon exercise of the warrants; |
| ● | if
applicable, the exercise price for shares of our preferred stock, the number of shares of
preferred stock to be received upon exercise, and a description of that class or series of
our preferred stock; |
| ● | if
applicable, the exercise price for our debt securities, the amount of our debt securities
to be received upon exercise, and a description of that series of debt securities; |
| ● | the
date on which the right to exercise the warrants will begin and the date on which that right
will expire or, if the warrants may not be continuously exercised throughout that period,
the specific date or dates on which the warrants may be exercised; |
| ● | whether
the warrants will be issued in fully registered form or bearer form, in definitive or global
form or in any combination of these forms, although, in any case, the form of a warrant included
in a unit will correspond to the form of the unit and of any security included in that unit; |
| ● | any
applicable material U.S. federal income tax consequences; |
| ● | the
identity of the warrant agent for the warrants and of any other depositaries, execution or
paying agents, transfer agents, registrars or other agents; |
| ● | the
proposed listing, if any, of the warrants or any securities purchasable upon exercise of
the warrants on any securities exchange; |
| ● | if
applicable, the date from and after which the warrants and the common stock, preferred stock
and/or debt securities will be separately transferable; |
| ● | if
applicable, the minimum or maximum amount of the warrants that may be exercised at any one
time; |
| ● | information
with respect to book-entry procedures, if any; |
| ● | the
anti-dilution provisions of the warrants, if any; |
| ● | any
redemption or call provisions; |
| ● | whether
the warrants are to be sold separately or with other securities as parts of units; and |
| ● | any
additional terms of the warrants, including terms, procedures and limitations relating to
the exchange and exercise of the warrants. |
Transfer
Agent and Registrar
The
transfer agent and registrar for any warrants will be set forth in the applicable prospectus supplement.
DESCRIPTION
OF DEBT SECURITIES
We
will issue any debt securities offered by this prospectus and any accompanying prospectus supplement under an indenture to be entered
into between us and the trustee identified in the applicable prospectus supplement. The terms of the debt securities will include those
stated in the indenture and those made part of the indenture by reference to the Trust Indenture Act of 1939, as in effect on the date
of the indenture. We have filed a copy of the form of indenture as an exhibit to the registration statement in which this prospectus
is included. The indenture will be subject to and governed by the terms of the Trust Indenture Act of 1939.
We
may offer under this prospectus up to an aggregate principal amount of $50,000,000 in debt securities, or if debt securities are issued
at a discount, or in a foreign currency, foreign currency units or composite currency, the principal amount as may be sold for an initial
public offering price of up to $50,000,000. Unless otherwise specified in the applicable prospectus supplement, the debt securities will
represent our direct, unsecured obligations and will rank equally with all of our other unsecured indebtedness.
The
following statements relating to the debt securities and the indenture are summaries, qualified in their entirety by reference to the
detailed provisions of the debt securities we issue and the indenture we enter into with the trustee.
General
We
may issue the debt securities in one or more series with the same or various maturities, at par, at a premium, or at a discount. We will
describe the particular terms of each series of debt securities in a prospectus supplement relating to that series, which we will file
with the SEC.
The
prospectus supplement will set forth, to the extent required and applicable, the following terms of the debt securities in respect of
which the prospectus supplement is delivered:
| ● | the
title of the series; |
| ● | the
aggregate principal amount, and, if a series, the total amount authorized and the total amount
outstanding; |
| ● | the
issue price or prices, expressed as a percentage of the aggregate principal amount of the
debt securities; |
| ● | any
limit on the aggregate principal amount; |
| ● | the
date or dates on which principal is payable; |
| ● | the
interest rate or rates (which may be fixed or variable) or, if applicable, the method used
to determine such rate or rates; |
| ● | the
date or dates from which interest, if any, will be payable and any regular record date for
the interest payable; |
| ● | the
place or places where principal and, if applicable, premium and interest, is payable; |
| ● | the
terms and conditions upon which we may, or the holders may require us to, redeem or repurchase
the debt securities; |
| ● | the
denominations in which such debt securities may be issuable, if other than denominations
of $1,000 or any integral multiple of that number; |
| ● | whether
the debt securities are to be issuable in the form of certificated securities (as described
below) or global securities (as described below); |
| ● | the
portion of principal amount that will be payable upon declaration of acceleration of the
maturity date if other than the principal amount of the debt securities; |
| ● | the
currency of denomination; |
| ● | the
designation of the currency, currencies or currency units in which payment of principal and,
if applicable, premium and interest, will be made; |
| ● | if
payments of principal and, if applicable, premium or interest, on the debt securities are
to be made in one or more currencies or currency units other than the currency of denomination,
the manner in which the exchange rate with respect to such payments will be determined; |
| ● | if
amounts of principal and, if applicable, premium and interest may be determined by reference
to an index based on a currency or currencies or by reference to a commodity, commodity index,
stock exchange index or financial index, then the manner in which such amounts will be determined; |
| ● | the
provisions, if any, relating to any collateral provided for such debt securities; |
| ● | any
addition to or change in the covenants and/or the acceleration provisions described in this
prospectus or in the indenture; |
| ● | any
events of default, if not otherwise described below under “Events of Default”; |
| ● | the
terms and conditions, if any, for conversion into or exchange for shares of our common stock
or preferred stock; |
| ● | any
depositaries, interest rate calculation agents, exchange rate calculation agents or other
agents; and |
| ● | the
terms and conditions, if any, upon which the debt securities shall be subordinated in right
of payment to our other indebtedness. |
We
may issue discount debt securities that provide for an amount less than the stated principal amount to be due and payable upon acceleration
of the maturity of such debt securities in accordance with the terms of the indenture. We may also issue debt securities in bearer form,
with or without coupons. If we issue discount debt securities or debt securities in bearer form, we will describe material U.S. federal
income tax considerations and other material special considerations which apply to these debt securities in the applicable prospectus
supplement.
We
may issue debt securities denominated in or payable in a foreign currency or currencies or a foreign currency unit or units. If we do,
we will describe the restrictions, elections, and general tax considerations relating to the debt securities and the foreign currency
or currencies or foreign currency unit or units in the applicable prospectus supplement.
Debt
securities offered under this prospectus and any prospectus supplement will be subordinated in right of payment to certain of our outstanding
senior indebtedness, including our credit facilities. In addition, we will seek the consent of the holders of any such senior indebtedness
prior to issuing any debt securities under this prospectus to the extent required by the agreements evidencing such senior indebtedness.
Exchange
and/or Conversion Rights
We
may issue debt securities that can be exchanged for or converted into shares of our common stock or preferred stock. If we do, we will
describe the terms of exchange or conversion in the prospectus supplement relating to these debt securities.
Transfer
and Exchange
We
may issue debt securities that will be represented by either:
| ● | “book-entry
securities,” which means that there will be one or more global securities registered
in the name of a depositary or a nominee of a depositary; or |
| ● | “certificated
securities,” which means that they will be represented by a certificate issued in definitive
registered form. |
We
will specify in the prospectus supplement applicable to a particular offering whether the debt securities offered will be book-entry
or certificated securities.
Certificated
Debt Securities
If
you hold certificated debt securities, you may transfer or exchange such debt securities at the trustee’s office or at the paying
agent’s office or agency in accordance with the terms of the indenture. You will not be charged a service charge for any transfer
or exchange of certificated debt securities but may be required to pay an amount sufficient to cover any tax or other governmental charge
payable in connection with such transfer or exchange.
You
may effect the transfer of certificated debt securities and of the right to receive the principal of, premium, and/or interest, if any,
on the certificated debt securities only by surrendering the certificate representing the certificated debt securities and having us
or the trustee issue a new certificate to the new holder.
Global
Securities
If
we decide to issue debt securities in the form of one or more global securities, then we will register the global securities in the name
of the depositary for the global securities or the nominee of the depositary, and the global securities will be delivered by the trustee
to the depositary for credit to the accounts of the holders of beneficial interests in the debt securities.
The
prospectus supplement will describe the specific terms of the depositary arrangement for debt securities of a series that are issued
in global form. None of us, the trustee, any payment agent or the security registrar will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial ownership interests in a global debt security or for maintaining,
supervising or reviewing any records relating to these beneficial ownership interests.
No
Protection in the Event of Change of Control
The
indenture does not have any covenants or other provisions providing for a put or increased interest or otherwise that would afford holders
of our debt securities additional protection in the event of a recapitalization transaction, a change of control, or a highly leveraged
transaction. If we offer any covenants or provisions of this type with respect to any debt securities covered by this prospectus, we
will describe them in the applicable prospectus supplement.
Covenants
Unless
otherwise indicated in this prospectus or the applicable prospectus supplement, our debt securities will not have the benefit of any
covenants that limit or restrict our business or operations, the pledging of our assets or the incurrence by us of indebtedness. We will
describe in the applicable prospectus supplement any material covenants in respect of a series of debt securities.
Consolidation,
Merger and Sale of Assets
The
form of indenture provides that we will not consolidate with or merge into any other person or convey, transfer, sell or lease our properties
and assets substantially as an entirety to any person, unless:
| ● | the
person formed by the consolidation or into or with which we are merged or the person to which
our properties and assets are conveyed, transferred, sold or leased, is a corporation organized
and existing under the laws of the U.S., any state or the District of Columbia or a corporation
or comparable legal entity organized under the laws of a foreign jurisdiction and, if we
are not the surviving person, the surviving person has expressly assumed all of our obligations,
including the payment of the principal of and, premium, if any, and interest on the debt
securities and the performance of the other covenants under the indenture; and |
| ● | immediately
before and immediately after giving effect to the transaction, no event of default, and no
event which, after notice or lapse of time or both, would become an event of default, has
occurred and is continuing under the indenture. |
Events
of Default
Unless
otherwise specified in the applicable prospectus supplement, the following events will be events of default under the indenture with
respect to debt securities of any series:
| ● | we
fail to pay any principal or premium, if any, when it becomes due; |
| ● | we
fail to pay any interest within 30 days after it becomes due; |
| ● | we
fail to observe or perform any other covenant in the debt securities or the indenture for
60 days after written notice specifying the failure from the trustee or the holders of not
less than 25% in aggregate principal amount of the outstanding debt securities of that series;
and |
| ● | certain
events involving bankruptcy, insolvency or reorganization of us or any of our significant
subsidiaries. |
The
trustee may withhold notice to the holders of the debt securities of any series of any default, except in payment of principal of or
premium, if any, or interest on the debt securities of a series, if the trustee considers it to be in the best interest of the holders
of the debt securities of that series to do so.
If
an event of default (other than an event of default resulting from certain events of bankruptcy, insolvency or reorganization) occurs,
and is continuing, then the trustee or the holders of not less than 25% in aggregate principal amount of the outstanding debt securities
of any series may accelerate the maturity of the debt securities. If this happens, the entire principal amount, plus the premium, if
any, of all the outstanding debt securities of the affected series plus accrued interest to the date of acceleration will be immediately
due and payable. At any time after the acceleration, but before a judgment or decree based on such acceleration is obtained by the trustee,
the holders of a majority in aggregate principal amount of outstanding debt securities of such series may rescind and annul such acceleration
if:
| ● | all
events of default (other than nonpayment of accelerated principal, premium or interest) have
been cured or waived; |
| ● | all
lawful interest on overdue interest and overdue principal has been paid; and |
| ● | the
rescission would not conflict with any judgment or decree. |
In
addition, if the acceleration occurs at any time when we have outstanding indebtedness that is senior to the debt securities, the payment
of the principal amount of outstanding debt securities may be subordinated in right of payment to the prior payment of any amounts due
under the senior indebtedness, in which case the holders of debt securities will be entitled to payment under the terms prescribed in
the instruments evidencing the senior indebtedness and the indenture.
If
an event of default resulting from certain events of bankruptcy, insolvency or reorganization occurs, the principal, premium and interest
amount with respect to all of the debt securities of any series will be due and payable immediately without any declaration or other
act on the part of the trustee or the holders of the debt securities of that series.
The
holders of a majority in principal amount of the outstanding debt securities of a series will have the right to waive any existing default
or compliance with any provision of the indenture or the debt securities of that series and to direct the time, method and place of conducting
any proceeding for any remedy available to the trustee, subject to certain limitations specified in the indenture.
No
holder of any debt security of a series will have any right to institute any proceeding with respect to the indenture or for any remedy
under the indenture, unless:
| ● | the
holder gives to the trustee written notice of a continuing event of default; |
| ● | the
holders of at least 25% in aggregate principal amount of the outstanding debt securities
of the affected series make a written request and offer reasonable indemnity to the trustee
to institute a proceeding as trustee; |
| ● | the
trustee fails to institute a proceeding within 60 days after such request; and |
| ● | the
holders of a majority in aggregate principal amount of the outstanding debt securities of
the affected series do not give the trustee a direction inconsistent with such request during
such 60-day period. |
These
limitations do not, however, apply to a suit instituted for payment on debt securities of any series on or after the due dates expressed
in the debt securities.
We
will periodically deliver certificates to the trustee regarding our compliance with our obligations under the indenture.
Modification
and Waiver
From
time to time, we and the trustee may, without the consent of holders of the debt securities of one or more series, amend the indenture
or the debt securities of one or more series, or supplement the indenture, for certain specified purposes, including:
| ● | to
provide that the surviving entity following a change of control permitted under the indenture
will assume all of our obligations under the indenture and debt securities; |
| ● | to
provide for certificated debt securities in addition to uncertificated debt securities; |
| ● | to
comply with any requirements of the SEC under the Trust Indenture Act of 1939; |
| ● | to
provide for the issuance of and establish the form and terms and conditions of debt securities
of any series as permitted by the indenture; |
| ● | to
cure any ambiguity, defect or inconsistency, or make any other change that does not materially
and adversely affect the rights of any holder; and |
| ● | to
appoint a successor trustee under the indenture with respect to one or more series. |
From
time to time we and the trustee may, with the consent of holders of at least a majority in principal amount of an outstanding series
of debt securities, amend or supplement the indenture or the debt securities series, or waive compliance in a particular instance by
us with any provision of the indenture or the debt securities. We may not, however, without the consent of each holder affected by such
action, modify or supplement the indenture or the debt securities or waive compliance with any provision of the indenture or the debt
securities in order to:
| ● | reduce
the amount of debt securities whose holders must consent to an amendment, supplement, or
waiver to the indenture or such debt security; |
| ● | reduce
the rate of or change the time for payment of interest or reduce the amount of or postpone
the date for payment of sinking fund or analogous obligations; |
| ● | reduce
the principal of or change the stated maturity of the debt securities; |
| ● | make
any debt security payable in money other than that stated in the debt security; |
| ● | change
the amount or time of any payment required or reduce the premium payable upon any redemption,
or change the time before which no such redemption may be made; |
| ● | waive
a default in the payment of the principal of, premium, if any, or interest on the debt securities
or a redemption payment; |
| ● | waive
a redemption payment with respect to any debt securities or change any provision with respect
to redemption of debt securities; or |
| ● | take
any other action otherwise prohibited by the indenture to be taken without the consent of
each holder affected by the action. |
Defeasance
of Debt Securities and Certain Covenants in Certain Circumstances
The
indenture permits us, at any time, to elect to discharge our obligations with respect to one or more series of debt securities by following
certain procedures described in the indenture. These procedures will allow us either:
| ● | to
defease and be discharged from any and all of our obligations with respect to any debt securities,
except for the following obligations (which discharge is referred to as “legal defeasance”): |
| | ○ | to
register the transfer or exchange of such debt securities; |
| ○ | to
replace temporary or mutilated, destroyed, lost or stolen debt securities; |
| ○ | to
compensate and indemnify the trustee; or |
| ○ | to
maintain an office or agency in respect of the debt securities and to hold monies for payment
in trust; or |
| ● | to
be released from our obligations with respect to the debt securities under certain covenants
contained in the indenture, as well as any additional covenants which may be contained in
the applicable supplemental indenture (which release is referred to as “covenant defeasance”). |
In
order to exercise either defeasance option, we must deposit with the trustee or other qualifying trustee, in trust for that purpose:
| ● | money; |
| ● | U.S.
Government Obligations (as described below) or Foreign Government Obligations (as described
below) that through the scheduled payment of principal and interest in accordance with their
terms will provide money; or |
| ● | a
combination of money and/or U.S. Government Obligations and/or Foreign Government Obligations
sufficient in the written opinion of a nationally-recognized firm of independent accountants
to provide money; |
that,
in each case specified above, provides a sufficient amount to pay the principal of, premium, if any, and interest, if any, on the debt
securities of the series, on the scheduled due dates or on a selected date of redemption in accordance with the terms of the indenture.
In
addition, defeasance may be effected only if, among other things:
| ● | in
the case of either legal or covenant defeasance, we deliver to the trustee an opinion of
counsel, as specified in the indenture, stating that as a result of the defeasance neither
the trust nor the trustee will be required to register as an investment company under the
Investment Company Act of 1940; |
| ● | in
the case of legal defeasance, we deliver to the trustee an opinion of counsel stating that
we have received from, or there has been published by, the Internal Revenue Service a ruling
to the effect that, or there has been a change in any applicable federal income tax law with
the effect that (and the opinion shall confirm that), the holders of outstanding debt securities
will not recognize income, gain or loss for U.S. federal income tax purposes solely as a
result of such legal defeasance and will be subject to U.S. federal income tax on the same
amounts, in the same manner, including as a result of prepayment, and at the same times as
would have been the case if legal defeasance had not occurred; |
| ● | in
the case of covenant defeasance, we deliver to the trustee an opinion of counsel to the effect
that the holders of the outstanding debt securities will not recognize income, gain or loss
for U.S. federal income tax purposes as a result of covenant defeasance and will be subject
to U.S. federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if covenant defeasance had not occurred; and |
| ● | certain
other conditions described in the indenture are satisfied. |
If
we fail to comply with our remaining obligations under the indenture and applicable supplemental indenture after a covenant defeasance
of the indenture and applicable supplemental indenture, and the debt securities are declared due and payable because of the occurrence
of any undefeased event of default, the amount of money and/or U.S. Government Obligations and/or Foreign Government Obligations on deposit
with the trustee could be insufficient to pay amounts due under the debt securities of the affected series at the time of acceleration.
We will, however, remain liable in respect of these payments.
The
term “U.S. Government Obligations” as used in the above discussion means securities that are direct obligations of or non-callable
obligations guaranteed by the United States of America for the payment of which obligation or guarantee the full faith and credit of
the United States of America is pledged.
The
term “Foreign Government Obligations” as used in the above discussion means, with respect to debt securities of any series
that are denominated in a currency other than U.S. dollars, (1) direct obligations of the government that issued or caused to be issued
such currency for the payment of which obligations its full faith and credit is pledged or (2) obligations of a person controlled or
supervised by or acting as an agent or instrumentality of such government the timely payment of which is unconditionally guaranteed as
a full faith and credit obligation by that government, which in either case under clauses (1) or (2), are not callable or redeemable
at the option of the issuer.
Regarding
the Trustee
We
will identify the trustee with respect to any series of debt securities in the prospectus supplement relating to the applicable debt
securities. You should note that if the trustee becomes a creditor of ours, the indenture and the Trust Indenture Act of 1939 limit the
rights of the trustee to obtain payment of claims in certain cases, or to realize on certain property received in respect of any such
claim, as security or otherwise. The trustee and its affiliates may engage in, and will be permitted to continue to engage in, other
transactions with us and our affiliates. If, however, the trustee acquires any “conflicting interest” within the meaning
of the Trust Indenture Act of 1939, it must eliminate such conflict or resign.
The
holders of a majority in principal amount of the then outstanding debt securities of any series may direct the time, method and place
of conducting any proceeding for exercising any remedy available to the trustee. If an event of default occurs and is continuing, the
trustee, in the exercise of its rights and powers, must use the degree of care and skill of a prudent person in the conduct of his or
her own affairs. Subject to that provision, 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 have offered to the trustee reasonable indemnity or
security.
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 any prospectus supplement and any free writing prospectus
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 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:
| ● | the
title of the series of units; |
| ● | identification
and description of the separate constituent securities comprising the units; |
| ● | the
price or prices at which the units will be issued; |
| ● | the
date, if any, on and after which the constituent securities comprising the units will be
separately transferable; |
| ● | a
discussion of certain U.S. federal income tax considerations applicable to the units; and |
| ● | any
other terms of the units and their constituent securities. |
LEGAL
MATTERS
The
validity of the securities offered hereby will be passed upon for us by Fredrikson & Byron, P.A., Minneapolis, Minnesota. The validity
of any securities will be passed upon for any underwriters or agents by counsel that we will name in the applicable prospectus supplement.
EXPERTS
Our
consolidated financial statements as of December 31, 2023 and 2022 and for each of the years then ended, incorporated by reference in
this prospectus, have been audited by Baker Tilly US, LLP, an independent registered public accounting firm, as set forth in the report
thereon, and is incorporated by reference in reliance upon such report given on the authority of such firm as experts in accounting and
auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We
have filed a registration statement on Form S-3 with the SEC for the securities we are offering by this prospectus. This prospectus does
not include all of the information contained in the registration statement. You should refer to the registration statement and its exhibits
for additional information.
We
are required to file annual, quarterly and current reports, proxy statements and other information with the SEC. We make these documents
publicly available, free of charge, on our website at www.nephros.com as soon as reasonably practicable after filing such documents
with the SEC. Please note, however, that information on our website is not, and should not be deemed to be, a part of this prospectus.
You can read our SEC filings, including the registration statement, on the SEC’s website at www.sec.gov.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The
SEC allows us to “incorporate by reference” into this prospectus the information we file with it, which means that we can
disclose important information to you by referring you to those documents. The information incorporated by reference is considered to
be part of this prospectus, and information in documents that we file later with the SEC will automatically update and supersede information
in this prospectus. We incorporate by reference into this prospectus the documents listed below and any future filings made by us with
the SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (other than filings or portions of filings that are furnished under
applicable SEC rules rather than filed) until we close this offering, including all filings made after the date of the initial registration
statement and prior to the effectiveness of the registration statement. We hereby incorporate by reference the following documents:
| |
● |
our
Annual Report on Form 10-K for the year ended December 31, 2023, filed on March 15, 2024; |
| |
|
|
| |
● |
our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2024, filed on May 9, 2024; |
| |
|
|
| |
● |
the
description of our common stock contained in our registration statement on Form
8-A filed August 13, 2019, under the Exchange Act, including any amendment or report filed for the purpose of updating
such description; and |
| |
|
|
| |
● |
our
definitive Proxy Statement on Schedule 14A filed on April 12, 2024. |
You
may request a copy of these filings, at no cost, by writing or telephoning us at the following address:
Nephros,
Inc.
380
Lackawanna Place
South
Orange, New Jersey 07079
Phone: (201) 343-5202
Copies
of these filings are also available, without charge, on our website at www.nephros.com as soon as reasonably practicable after
they are filed electronically with the SEC. The information contained on our website is not a part of this prospectus.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth the estimated costs and expenses payable by the registrant in connection with the sale of the securities being
registered. All amounts are estimates.
| SEC
filing fee |
|
$ |
7,380 |
|
| FINRA
filing fee |
|
$ |
* |
|
| Legal
fees and expenses |
|
$ |
* |
|
| Accounting
fees and expenses |
|
$ |
* |
|
| Transfer
Agent and Registrar fees and expenses |
|
$ |
* |
|
| Miscellaneous |
|
$ |
* |
|
| Total |
|
$ |
* |
|
*
Estimated expenses not presently known.
Item
15. Indemnification of Directors and Officers.
Section
145 of the Delaware General Corporation Law (the “DGCL”) permits a corporation, under specified circumstances, to indemnify
its directors, officers, employees or agents against expenses (including attorneys’ fees), judgments, fines and amounts paid in
settlements actually and reasonably incurred by them in connection with any action, suit or proceeding brought by third parties by reason
of the fact that they were or are directors, officers, employees or agents of the corporation, if such directors, officers, employees
or agents acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation
and, with respect to any criminal action or proceeding, had no reason to believe their conduct was unlawful. In a derivative action,
that is one by or in the right of the corporation, indemnification may be made only for expenses actually and reasonably incurred by
directors, officers, employees or agents in connection with the defense or settlement of an action or suit, and only with respect to
a matter as to which they will have acted in good faith and in a manner they reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification will be made if such person will have been adjudged liable to the corporation,
unless and only to the extent that the court in which the action or suit was brought will determine upon application that the defendant
directors, officers, employees or agents are fairly and reasonably entitled to indemnity for such expenses despite such adjudication
of liability.
Our
Fourth Amended and Restated Certificate of Incorporation, as amended, provides for indemnification of our directors and officers of the
registrant to the fullest extent permitted by the DGCL. Our Second Amended and Restated By-Laws provides that we will generally indemnify
our directors, officers, employees or agents to the fullest extent permitted by law against all losses, claims, damages or similar events.
We have obtained liability insurance for each director and officer for certain losses arising from claims or charges made against them
while acting in their capacities as directors or officers of our company.
Item
16. Exhibits.
The
following exhibits are filed as part of this registration statement:
Exhibit
No. |
|
Description |
| |
|
|
| 1.1 |
|
Form
of Underwriting Agreement** |
| |
|
|
| 4.1 |
|
Conformed Copy of the Fourth Amended and Restated Certificate of Incorporation, incorporating those Certificates of Amendment dated June 4, 2007; June 29, 2007; November 13, 2007; October 23, 2009; March 10, 2011; March 11, 2011; and July 8, 2019, incorporated by reference to Exhibit 3.1 to Nephros, Inc.’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2019, filed with the SEC on August 7, 2019. |
| |
|
|
| 4.2 |
|
Second Amended and Restated By-Laws of the Registrant, incorporated by reference to Exhibit 3.1 to Nephros, Inc.’s Current Report on Form 8-K, filed with the SEC on December 3, 2007. |
| |
|
|
| 4.3 |
|
Specimen of Common Stock Certificate of the Registrant, incorporated by reference to Exhibit 4.1 to Nephros, Inc.’s Amendment No. 1 to Registration Statement on Form S-1/A (Reg. No. 333-116162), filed with the SEC on July 20, 2004. |
| |
|
|
| 4.4 |
|
Description of Capital Stock, incorporated by reference to Exhibit 4.5 to Nephros, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2019, filed with the SEC on February 27, 2020. |
| |
|
|
| 4.5 |
|
Form
of Preferred Stock Certificate** |
| |
|
|
| 4.6 |
|
Form
of Common Stock Warrant Agreement and Warrant Certificate** |
| |
|
|
| 4.7 |
|
Form
of Preferred Stock Warrant Agreement and Warrant Certificate** |
| |
|
|
| 4.8 |
|
Form
of Debt Securities Warrant Agreement and Warrant Certificate** |
| |
|
|
| 4.9 |
|
Form
of Unit Agreement** |
| |
|
|
| 4.10 |
|
Form of Indenture* |
| |
|
|
| 5.1 |
|
Opinion of Fredrikson & Byron, P.A. as to the legality of the securities being registered.* |
| |
|
|
| 23.1 |
|
Consent of Baker Tilly US, LLP, Independent Registered Public Accounting Firm.* |
| |
|
|
| 23.2 |
|
Consent of Fredrikson & Byron, P.A. (included on Exhibit 5.1). |
| |
|
|
| 24.1 |
|
Power of Attorney (included on signature page hereto). |
| |
|
|
| 25.1 |
|
Statement
of Eligibility of Trustee Under Debt Indenture (to be filed separately pursuant to Section 305(b)(2) of the Trust Indenture Act of
1939) |
| |
|
|
| 107 |
|
Filing Fee Table* |
*
Filed herewith.
**
To be filed if necessary, subsequent to the effectiveness of this registration statement by an amendment to this registration statement
or incorporated by reference pursuant to a Current Report on Form 8-K in connection with the offering of securities.
Item
17. Undertakings.
| (a) |
The
undersigned registrant hereby undertakes: |
| |
(1) |
To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
| |
(i)
|
To
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933 (the “Act”); |
| |
|
|
| |
(ii) |
To
reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information 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 this registration statement
or any material change to such information in this registration statement. |
|
Provided, however, that the undertakings set forth in paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statements or is contained in a form of prospectus filed pursuant to Rule 424(b) that is a part of the registration statement. |
|
(2) |
That,
for the purpose of determining any liability under the 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. |
| |
|
|
| |
(5) |
That,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
| |
|
|
| |
|
(A) |
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 |
| |
|
|
|
| |
|
(B) |
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 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. |
| |
|
|
| |
(6) |
That,
for the purpose of determining liability of the registrant under the 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. |
| |
|
|
| (b) |
The
undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing
of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that
is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| |
|
| (h) |
Insofar
as indemnification for liabilities arising under the Act may be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication
of such issue. |
| |
|
| (j) |
If
and when applicable, the undersigned registrant, hereby undertakes to file an application for the purpose of determining the eligibility
of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations
prescribed by the Commission under Section 305(b)(2) of the Act. |
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of South Orange, State of New Jersey, on May 10, 2024.
| |
NEPHROS,
INC. |
| |
|
|
| |
By:
|
/s/
Robert Banks |
| |
Name:
|
Robert
Banks |
| |
Title: |
President
and Chief Executive Officer |
POWER
OF ATTORNEY
Each
of the undersigned constitutes and appoints each of Robert Banks and Judy Krandel as his or her true and lawful attorney-in-fact and
agent, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities,
to sign this Registration Statement on Form S-3 of Nephros, Inc., any or all amendments, supplements, or post-effective amendments to
the Registration Statement on Form S-3, and any related Rule 462(b) registration statement or amendment thereto, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, each acting alone, full power and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and purposes as the undersigned might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, each acting alone, 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, this registration statement has been signed by the following persons in the capacities
and on the dates indicated.
| Signature |
|
Title
|
|
Date |
| |
|
|
|
|
| /s/
Robert Banks |
|
President,
Chief Executive Officer and Director |
|
May
10, 2024 |
| Robert
Banks |
|
(Principal
Executive Officer) |
|
|
| |
|
|
|
|
| /s/
Judy Krandel |
|
Chief
Financial Officer |
|
May
10, 2024 |
| Judy
Krandel |
|
(Principal
Financial and Accounting Officer) |
|
|
| |
|
|
|
|
| /s/
Arthur H. Amron |
|
Director |
|
May
10, 2024 |
| Arthur
H. Amron |
|
|
|
|
| |
|
|
|
|
| /s/
Joseph Harris |
|
Director |
|
May
10, 2024 |
| Joseph
Harris |
|
|
|
|
| |
|
|
|
|
| /s/
Alisa Lask |
|
Director |
|
May
10, 2024 |
| Alisa
Lask |
|
|
|
|
| |
|
|
|
|
| /s/
Oliver Spandow |
|
Director |
|
May
10, 2024 |
| Oliver
Spandow |
|
|
|
|
Exhibit
4.10
NEPHROS,
INC.
and
___________________,
as Trustee
INDENTURE
Dated
as of ___________, _______
TABLE
OF CONTENTS
| |
|
|
|
PAGE |
| ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE |
|
1 |
| |
1.1. |
DEFINITIONS. |
|
1 |
| |
1.2. |
OTHER
DEFINITIONS. |
|
4 |
| |
1.3. |
INCORPORATION
BY REFERENCE OF TRUST INDENTURE ACT. |
|
4 |
| |
1.4. |
RULES
OF CONSTRUCTION. |
|
5 |
| ARTICLE 2 THE SECURITIES |
|
5 |
| |
2.1. |
ISSUABLE
IN SERIES. |
|
5 |
| |
2.2. |
ESTABLISHMENT
OF TERMS OF SERIES OF SECURITIES. |
|
5 |
| |
2.3. |
EXECUTION
AND AUTHENTICATION. |
|
7 |
| |
2.4. |
REGISTRAR
AND PAYING AGENT. |
|
8 |
| |
2.5. |
PAYING
AGENT TO HOLD ASSETS IN TRUST. |
|
8 |
| |
2.6. |
SECURITYHOLDER
LISTS. |
|
9 |
| |
2.7. |
TRANSFER
AND EXCHANGE. |
|
9 |
| |
2.8. |
REPLACEMENT
SECURITIES. |
|
9 |
| |
2.9. |
OUTSTANDING
SECURITIES. |
|
9 |
| |
2.10. |
WHEN
TREASURY SECURITIES DISREGARDED; DETERMINATION OF HOLDERS’ ACTION. |
|
10 |
| |
2.11. |
TEMPORARY
SECURITIES. |
|
10 |
| |
2.12. |
CANCELLATION. |
|
10 |
| |
2.13. |
PAYMENT
OF INTEREST; DEFAULTED INTEREST; COMPUTATION OF INTEREST. |
|
10 |
| |
2.14. |
CUSIP
NUMBER. |
|
11 |
| |
2.15. |
PROVISIONS
FOR GLOBAL SECURITIES. |
|
11 |
| |
2.16. |
PERSONS
DEEMED OWNERS. |
|
12 |
| ARTICLE 3 REDEMPTION |
|
12 |
| |
3.1. |
NOTICES
TO TRUSTEE. |
|
12 |
| |
3.2. |
SELECTION
BY TRUSTEE OF SECURITIES TO BE REDEEMED. |
|
12 |
| |
3.3. |
NOTICE
OF REDEMPTION. |
|
13 |
| |
3.4. |
EFFECT
OF NOTICE OF REDEMPTION. |
|
13 |
| |
3.5. |
DEPOSIT
OF REDEMPTION PRICE. |
|
13 |
| |
3.6. |
SECURITIES
REDEEMED IN PART. |
|
14 |
| ARTICLE 4 COVENANTS |
|
14 |
| |
4.1. |
PAYMENT
OF SECURITIES. |
|
14 |
| |
4.2. |
SEC
REPORTS. |
|
14 |
| |
4.3. |
WAIVER
OF STAY, EXTENSION OR USURY LAWS. |
|
14 |
| |
4.4. |
COMPLIANCE
CERTIFICATE. |
|
15 |
| |
4.5. |
CORPORATE
EXISTENCE. |
|
15 |
| ARTICLE 5 SUCCESSOR CORPORATION |
|
15 |
| |
5.1. |
LIMITATION
ON CONSOLIDATION, MERGER AND SALE OF ASSETS. |
|
15 |
| |
5.2. |
SUCCESSOR
PERSON SUBSTITUTED. |
|
16 |
TABLE
OF CONTENTS
(continued)
| |
|
PAGE |
| ARTICLE 6 DEFAULTS AND REMEDIES |
|
16 |
| |
6.1. |
EVENTS
OF DEFAULT. |
|
16 |
| |
6.2. |
ACCELERATION. |
|
17 |
| |
6.3. |
REMEDIES. |
|
17 |
| |
6.4. |
WAIVER
OF PAST DEFAULTS AND EVENTS OF DEFAULT. |
|
17 |
| |
6.5. |
CONTROL
BY MAJORITY. |
|
18 |
| |
6.6. |
LIMITATION
ON SUITS. |
|
18 |
| |
6.7. |
RIGHTS
OF HOLDERS TO RECEIVE PAYMENT. |
|
18 |
| |
6.8. |
COLLECTION
SUIT BY TRUSTEE. |
|
18 |
| |
6.9. |
TRUSTEE
MAY FILE PROOFS OF CLAIM. |
|
18 |
| |
6.10. |
PRIORITIES. |
|
19 |
| |
6.11. |
UNDERTAKING
FOR COSTS. |
|
19 |
| ARTICLE 7 TRUSTEE |
|
19 |
| |
7.1. |
DUTIES
OF TRUSTEE. |
|
19 |
| |
7.2. |
RIGHTS
OF TRUSTEE. |
|
20 |
| |
7.3. |
INDIVIDUAL
RIGHTS OF TRUSTEE. |
|
21 |
| |
7.4. |
TRUSTEE’S
DISCLAIMER. |
|
21 |
| |
7.5. |
NOTICE
OF DEFAULT. |
|
21 |
| |
7.6. |
REPORTS
BY TRUSTEE TO HOLDERS. |
|
21 |
| |
7.7. |
COMPENSATION
AND INDEMNITY. |
|
21 |
| |
7.8. |
REPLACEMENT
OF TRUSTEE. |
|
22 |
| |
7.9. |
SUCCESSOR
TRUSTEE BY CONSOLIDATION, MERGER OR CONVERSION. |
|
23 |
| |
7.10. |
ELIGIBILITY;
DISQUALIFICATION. |
|
23 |
| |
7.11. |
PREFERENTIAL
COLLECTION OF CLAIMS AGAINST COMPANY. |
|
23 |
| |
7.12. |
PAYING
AGENTS. |
|
23 |
| ARTICLE 8 AMENDMENTS, SUPPLEMENTS AND WAIVERS |
|
23 |
| |
8.1. |
WITHOUT
CONSENT OF HOLDERS. |
|
23 |
| |
8.2. |
WITH
CONSENT OF HOLDERS. |
|
24 |
| |
8.3. |
COMPLIANCE
WITH TRUST INDENTURE ACT. |
|
25 |
| |
8.4. |
REVOCATION
AND EFFECT OF CONSENTS. |
|
25 |
| |
8.5. |
NOTATION
ON OR EXCHANGE OF SECURITIES. |
|
25 |
| |
8.6. |
TRUSTEE
TO SIGN AMENDMENTS, ETC. |
|
25 |
| ARTICLE 9 DISCHARGE OF INDENTURE; DEFEASANCE |
|
26 |
| |
9.1. |
DISCHARGE
OF INDENTURE. |
|
26 |
| |
9.2. |
LEGAL
DEFEASANCE. |
|
26 |
| |
9.3. |
COVENANT
DEFEASANCE. |
|
26 |
| |
9.4. |
CONDITIONS
TO LEGAL DEFEASANCE OR COVENANT DEFEASANCE. |
|
27 |
| |
9.5. |
DEPOSITED
MONEY AND U.S. AND FOREIGN GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS. |
|
28 |
TABLE
OF CONTENTS
(continued)
| |
|
|
|
PAGE |
| |
9.6. |
REINSTATEMENT. |
|
28 |
| |
9.7. |
MONEYS
HELD BY PAYING AGENT. |
|
28 |
| |
9.8. |
MONEYS
HELD BY TRUSTEE. |
|
28 |
| ARTICLE 10 MISCELLANEOUS |
|
29 |
| |
10.1. |
TRUST
INDENTURE ACT CONTROLS. |
|
29 |
| |
10.2. |
NOTICES. |
|
29 |
| |
10.3. |
COMMUNICATIONS
BY HOLDERS WITH OTHER HOLDERS. |
|
30 |
| |
10.4. |
CERTIFICATE
AND OPINION AS TO CONDITIONS PRECEDENT. |
|
30 |
| |
10.5. |
STATEMENT
REQUIRED IN CERTIFICATE AND OPINION. |
|
30 |
| |
10.6. |
RULES
BY TRUSTEE AND AGENTS. |
|
30 |
| |
10.7. |
BUSINESS
DAYS; LEGAL HOLIDAYS; PLACE OF PAYMENT. |
|
31 |
| |
10.8. |
GOVERNING
LAW. |
|
31 |
| |
10.9. |
NO
ADVERSE INTERPRETATION OF OTHER AGREEMENTS. |
|
31 |
| |
10.10. |
NO
RECOURSE AGAINST OTHERS. |
|
31 |
| |
10.11. |
SUCCESSORS. |
|
31 |
| |
10.12. |
MULTIPLE
COUNTERPARTS. |
|
31 |
| |
10.13. |
TABLE
OF CONTENTS, HEADINGS, ETC. |
|
31 |
| |
10.14. |
SEVERABILITY. |
|
31 |
| |
10.15. |
SECURITIES
IN A FOREIGN CURRENCY OR IN EUROS. |
|
32 |
| |
10.16. |
JUDGMENT
CURRENCY. |
|
32 |
CROSS-REFERENCE
TABLE
TIA
SECTION |
|
INDENTURE
SECTION |
| 310(a)(1)(2)(5) |
|
7.10 |
| 310(a)(3)(4) |
|
Inapplicable |
| 310(b) |
|
7.8;
7.10 |
| 310(c) |
|
Inapplicable |
| |
|
|
| 311(a)(b) |
|
7.11 |
| 311(c) |
|
Inapplicable |
| |
|
|
| 312(a) |
|
2.6 |
| 312(b)(c) |
|
10.3 |
| |
|
|
| 313(a)(b) |
|
7.6 |
| 313(c) |
|
7.6;
10.2 |
| 313(d) |
|
7.6 |
| |
|
|
| 314(a) |
|
4.2;
4.4; 10.2 |
| 314(b) |
|
N/A |
| 314(c)(1)(2) |
|
10.4;
10.5 |
| 314(c)(3) |
|
Inapplicable |
| 314(d) |
|
Inapplicable |
| 314(e) |
|
10.5 |
| 314(f) |
|
Inapplicable |
| |
|
|
| 315(a) |
|
7.1,
7.2 |
| 315(b) |
|
7.5;
10.2 |
| 315(c) |
|
7.1 |
| 315(d) |
|
7.1;
7.2 |
| 315(e) |
|
6.11 |
| |
|
|
| 316(a)(last
sentence) |
|
2.10 |
| 316(a)(1)(A) |
|
6.5 |
| 316(a)(1)(B) |
|
6.4 |
| 316(a)(2) |
|
8.2 |
| 316(b) |
|
6.7 |
| 316(c) |
|
8.4 |
| |
|
|
| 317(a)(1) |
|
6.8 |
| 317(a)(2) |
|
6.9 |
| 317(b) |
|
2.5;
7.12 |
| 318(a) |
|
10.1 |
Note:
This Cross-Reference Table shall not, for any purpose, be deemed to be a part of the Indenture.
INDENTURE,
dated as of __________, _______, by and between Nephros, Inc., a Delaware corporation, as Issuer (the “Company”) and
__________________________, a ______________________ organized under the laws of _________________________, as Trustee (the
“Trustee”).
RECITALS
OF THE COMPANY
The
Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its debentures,
notes or other evidences of indebtedness to be issued in one or more series (the “Securities”), as herein provided, up to
such principal amount as may from time to time be authorized in or pursuant to one or more resolutions of the Board of Directors or by
supplemental indenture.
All
things necessary to make this Indenture a valid agreement of the Company in accordance with its terms have been done, and the execution
and delivery thereof have been in all respects duly authorized by the parties hereto.
NOW,
THEREFORE, THIS INDENTURE WITNESSETH:
For
and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal
and proportionate benefit of all Holders of the Securities of a Series thereof, as follows:
ARTICLE
1
DEFINITIONS AND INCORPORATION BY REFERENCE
“Affiliate”
of any specified Person means any other Person which, directly or indirectly through one or more intermediaries, controls, or is controlled
by or is under common control with, such specified Person. For the purposes of this definition, “control” (including, with
correlative meanings, the terms “controlling,” “controlled by” and “under common control with”),
as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
“Agent”
means any Registrar, Paying Agent, co-registrar or agent for service of notices and demands.
“Board
of Directors” means the Board of Directors of the Company or any committee duly authorized to act therefor.
“Board
Resolution” means a copy of a resolution certified pursuant to an Officers’ Certificate to have been duly adopted by the
Board of Directors of the Company and to be in full force and effect on the date of such certification which has been delivered to the
Trustee.
“Capital
Stock” means, with respect to any Person, any and all shares or other equivalents (however designated) of capital stock, partnership
interests or any other participation, right or other interest in the nature of an equity interest in such Person or any option, warrant
or other security convertible into any of the foregoing.
“Company”
means the party named as such in the first paragraph of this Indenture until a successor replaces such party pursuant to Article 5 of
this Indenture, and thereafter means the successor and any other primary obligor on the Securities.
“Company
Order” means a written order signed in the name of the Company by two Officers, one of whom must be its Chief Executive Officer
or its Chief Financial Officer.
“Company
Request” means any written request signed in the name of the Company by its Chief Executive Officer, its President, any Vice President,
its Chief Financial Officer or its Treasurer and attested to by its Secretary or any Assistant Secretary.
“Corporate
Trust Office” means the office of the Trustee at which at any particular time its corporate trust business shall be principally
administered.
“Default”
means any event that is, or that with the passing of time or giving of notice or both would be, an Event of Default.
“Depository”
means, with respect to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities,
the Person designated as Depository for such Series by the Company, which Depository shall be a clearing agency registered under the
Exchange Act, until a successor Depository shall have become such pursuant to the applicable provisions of this Indenture, and thereafter
“Depository” shall mean each Person who is then a Depository hereunder, and if at any time there is more than one such Person,
such Persons.
“Dollars”
means the currency of the United States of America.
“Euro”
means the single currency of participating member states of the economic and monetary union as contemplated in the Treaty on European
Union.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Foreign
Currency” means any currency or currency unit issued by a government other than the government of the United States of America.
“Foreign
Government Obligations” means, with respect to Securities that are denominated in a Foreign Currency, (i) direct obligations of
the government that issued or caused to be issued such currency for the payment of which obligations its full faith and credit is pledged
or (ii) obligations of a Person controlled or supervised by, or acting as an agency or instrumentality of, such government, the timely
payment of which is unconditionally guaranteed as a full faith and credit obligation by such government, which, in either case under
clauses (i) and (ii), are not callable or redeemable at the option of the issuer thereof.
“GAAP”
means generally accepted accounting principles consistently applied as in effect in the United States of America from time to time.
“Global
Security” or “Global Securities” means a Security or Securities, as the case may be, in the form established pursuant
to Section 2.2, evidencing all or part of a Series of Securities issued to the Depository for such Series or its nominee, and registered
in the name of such Depository or nominee, and bearing the legend set forth in Section 2.15(c) (or such other legend(s) as may be applied
to such Securities in accordance with Section 2.2(24)).
“Holder”
or “Securityholder” means the Person in whose name a Security is registered on the Registrar’s books.
“Indebtedness”
means (without duplication), with respect to any Person, any indebtedness at any time outstanding, secured or unsecured, contingent or
otherwise, which is for borrowed money (whether or not the recourse of the lender is to the whole of the assets of such Person or only
to a portion thereof), or evidenced by bonds, notes, debentures or similar instruments, or representing the balance deferred and unpaid
of the purchase price of any property (excluding any balances that constitute accounts payable or trade payables, and other accrued liabilities
arising in the ordinary course of business), if and to the extent any of the foregoing indebtedness would appear as a liability upon
a balance sheet of such Person prepared in accordance with GAAP.
“Indenture”
means this Indenture as amended, restated or supplemented from time to time.
“Interest
Payment Date,” when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
“Lien”
means, with respect to any property or assets of any Person, any mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement, encumbrance, preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever on or with respect to such property or assets (including, without limitation, any capitalized
lease obligation, conditional sales or other title retention agreement having substantially the same economic effect as any of the foregoing).
“Maturity,”
when used with respect to any Security, means the date on which the principal of such Security, or an installment of principal, becomes
due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption,
notice of option to elect payment or otherwise.
“Officer”
means the Chief Executive Officer, the President, any Vice President, the Chief Financial Officer, the Treasurer or the Secretary of
the Company, or any other officer designated by the Board of Directors, as the case may be.
“Officers’
Certificate” means, with respect to any Person, a certificate signed by the Chairman, Chief Executive Officer, President or any
Senior or Executive Vice President and the Chief Financial Officer or any Treasurer of such Person, that shall comply with applicable
provisions of this Indenture.
“Opinion
of Counsel” means a written opinion from legal counsel, which counsel is reasonably acceptable to the Trustee. The counsel may
be an employee of or counsel to the Company.
“Person”
means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated
organization or government (including any agency or political subdivision thereof).
“Redemption
Date,” when used with respect to any Security to be redeemed, means the date fixed for such redemption pursuant to this Indenture.
“Responsible
Officer,” when used with respect to the Trustee, means any officer within the corporate trust department or division of the Trustee
(or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed
by any of the above designated officers, and also means, with respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and familiarity with the particular subject.
“SEC”
means the United States Securities and Exchange Commission as constituted from time to time, or any successor performing substantially
the same functions.
“Securities”
means the securities that are issued under this Indenture, as amended or supplemented from time to time pursuant to this Indenture.
“Securities
Act” means the Securities Act of 1933, as amended.
“Series”
or “Series of Securities” means each series of debentures, notes or other debt instruments of the Company created pursuant
to Sections 2.1 and 2.2.
“Significant
Subsidiary” means (i) any direct or indirect Subsidiary of the Company that would be a “significant subsidiary” as
defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such regulation is in effect on the
date hereof, or (ii) any group of direct or indirect Subsidiaries of the Company that, taken together as a group, would be a “significant
subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such regulation
is in effect on the date hereof.
“Stated
Maturity,” when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security, or such installment of principal or interest, is due and
payable, and when used with respect to any other Indebtedness, means the date specified in the instrument governing such Indebtedness
as the fixed date on which the principal of such Indebtedness, or any installment of interest thereon, is due and payable.
“Subsidiary”
of any specified Person means any corporation, limited liability company, partnership, joint venture, association or other business entity,
whether now existing or hereafter organized or acquired, (i) in the case of a corporation, of which more than 50% of the total voting
power of the Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors thereof
is held, directly or indirectly, by such Person or any of its Subsidiaries; or (ii) in the case of a partnership, joint venture, association
or other business entity, with respect to which such Person or any of its Subsidiaries has the power to direct or cause the direction
of the management and policies of such entity by contract or otherwise, or if in accordance with GAAP such entity is consolidated with
such Person for financial statement purposes.
“TIA”
means the Trust Indenture Act of 1939 (15 U.S. Code Section 77aaa-77bbbb) as in effect on the date of this Indenture (except as provided
in Section 8.3).
“Trustee”
means the party named as such in this Indenture until a successor replaces it pursuant to this Indenture, and thereafter means the successor,
and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any Series shall
mean the Trustee with respect to Securities of that Series.
“U.S.
Government Obligations” means direct non-callable obligations of, or non-callable obligations guaranteed by, the United States
of America for the payment of which obligation or guarantee the full faith and credit of the United States of America is pledged.
The
definitions of the following terms may be found in the sections indicated as follows:
TERM |
|
DEFINED
IN SECTION |
| “Bankruptcy
Law” |
|
6.1 |
| |
|
|
| “Business
Day” |
|
10.7 |
| |
|
|
| “Covenant
Defeasance” |
|
9.3 |
| |
|
|
| “Custodian” |
|
6.1 |
| |
|
|
| “Event
of Default” |
|
6.1 |
| |
|
|
| “Journal” |
|
10.15 |
| |
|
|
| “Judgment
Currency” |
|
10.16 |
| |
|
|
| “Legal
Defeasance” |
|
9.2 |
| |
|
|
| “Legal
Holiday” |
|
10.7 |
| |
|
|
| “Market
Exchange Rate” |
|
10.15 |
| |
|
|
| “New
York Paying Agent” |
|
2.4 |
| |
|
|
| “Paying
Agent” |
|
2.4 |
| |
|
|
| “Place
of Payment” |
|
10.7 |
| |
|
|
| “Registrar” |
|
2.4 |
| |
|
|
| Required
Currency” |
|
10.16 |
| |
|
|
| “Service
Agent” |
|
2.4 |
| 1.3. |
INCORPORATION BY REFERENCE OF TRUST INDENTURE
ACT. |
Whenever
this Indenture refers to a provision of the TIA, the portion of such provision required to be incorporated herein in order for this Indenture
to be qualified under the TIA is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this
Indenture have the following meanings:
“Commission”
means the SEC.
“indenture
securities” means the Securities.
“indenture
securityholder” means a Holder or Securityholder.
“indenture
to be qualified” means this Indenture.
“indenture
trustee” or “institutional trustee” means the Trustee.
“obligor
on the indenture securities” means the Company.
All
other terms used in this Indenture that are defined by the TIA, defined in the TIA by reference to another statute or defined by SEC
rule have the meanings therein assigned to them.
| 1.4. |
RULES OF CONSTRUCTION. |
Unless
the context otherwise requires:
(1)
a term has the meaning assigned to it herein, whether defined expressly or by reference;
(2)
an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(3)
“or” is not exclusive;
(4)
words in the singular include the plural, and in the plural include the singular;
(5)
words used herein implying any gender shall apply to each gender; and
(6)
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.
ARTICLE
2
THE SECURITIES
The
aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is $ , , . The Securities may be
issued in one or more Series. All Securities of a Series shall be identical except as may be set forth in a Board Resolution, a supplemental
indenture or an Officers’ Certificate detailing the adoption of the terms thereof pursuant to the authority granted under a Board
Resolution. In the case of Securities of a Series to be issued from time to time, the Board Resolution, Officers’ Certificate or
supplemental indenture may provide for the method by which specified terms (such as interest rate, Stated Maturity, record date or date
from which interest shall accrue) are to be determined. Securities may differ between Series in respect of any matters, PROVIDED, that
all Series of Securities shall be equally and ratably entitled to the benefits of the Indenture.
| 2.2. |
ESTABLISHMENT OF TERMS OF SERIES OF SECURITIES. |
At
or prior to the issuance of any Securities within a Series, the following shall be established (as to the Series generally, in the case
of Subsection 2.2(1) and either as to such Securities within the Series or as to the Series generally in the case of Subsections 2.2(2)
through 2.2(24)) by a Board Resolution, a supplemental indenture or an Officers’ Certificate, in each case, pursuant to authority
granted under a Board Resolution:
(1)
the title of the Series (which shall distinguish the Securities of that particular Series from the Securities of any other Series);
(2)
any limit upon the aggregate principal amount of the Securities of the Series which 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 2.7, 2.8, 2.11, 3.6 or 8.5);
(3)
the price or prices (expressed as a percentage of the principal amount thereof) at which the Securities of the Series will be issued;
(4)
the date or dates on which the principal of the Securities of the Series is payable;
(5)
the rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or rates (including,
but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the Securities of the Series shall
bear interest, if any, the date or dates from which such interest, if any, shall accrue, the date or dates on which such interest, if
any, shall commence and be payable and any regular record date for the interest payable on any Interest Payment Date;
(6)
the place or places where the principal of, and interest and premium, if any, on, the Securities of the Series shall be payable, or the
method of such payment, if by wire transfer, mail or other means;
(7)
if applicable, the period or periods within which, the price or prices at which and the terms and conditions upon which the Securities
of the Series may be redeemed, in whole or in part, at the option of the Company;
(8)
the obligation, if any, of the Company to redeem or purchase the Securities of the Series pursuant to any sinking fund or analogous provisions
or at the option of a Holder thereof, and the period or periods within which, the price or prices at which and the terms and conditions
upon which Securities of the Series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(9)
the dates, if any, on which and the price or prices at which the Securities of the Series will be repurchased by the Company at the option
of the Holders thereof, and other detailed terms and provisions of such repurchase obligations;
(10)
if other than denominations of $1,000 and any integral multiple thereof, the denominations in which the Securities of the Series shall
be issuable;
(11)
the forms of the Securities of the Series in bearer (if to be issued outside of the United States of America) or fully registered form
(and, if in fully registered form, whether the Securities will be issuable as Global Securities);
(12)
if other than the principal amount thereof, the portion of the principal amount of the Securities of the Series that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to Section 6.2;
(13)
the currency of denomination of the Securities of the Series, which may be Dollars or any Foreign Currency, including, but not limited
to, the Euro, and, if such currency of denomination is a composite currency other than the Euro, the agency or organization, if any,
responsible for overseeing such composite currency;
(14)
the designation of the currency, currencies or currency units in which payment of the principal of, and interest and premium, if any,
on, the Securities of the Series will be made;
(15)
if payments of principal of, or interest or premium, if any, on, the Securities of the Series are to be made in one or more currencies
or currency units other than that or those in which such Securities are denominated, the manner in which the exchange rate with respect
to such payments will be determined;
(16)
the manner in which the amounts of payment of principal of, or interest and premium, if any, on, the Securities of the Series will be
determined, if such amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity,
commodity index, stock exchange index or financial index;
(17)
the provisions, if any, relating to any collateral provided for the Securities of the Series;
(18)
any addition to or change in the covenants set forth in Articles 4 or 5 that applies to Securities of the Series;
(19)
any addition to or change in the Events of Default which applies to any Securities of the Series, and any change in the right of the
Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 6.2;
(20)
the terms and conditions, if any, for conversion of the Securities into or exchange of the Securities for shares of common stock or preferred
stock of the Company that apply to Securities of the Series;
(21)
any depositories, interest rate calculation agents, exchange rate calculation agents or other agents with respect to Securities of such
Series if other than those appointed herein;
(22)
the terms and conditions, if any, upon which the Securities shall be subordinated in right of payment to other Indebtedness of the Company;
(23)
if applicable, that the Securities of the Series, in whole or any specified part, shall be defeasible pursuant to Article 9; and
(24)
any other terms of the Securities of the Series (which terms shall not be inconsistent with the provisions of this Indenture, except
as permitted by Section 8.1, but which may modify or delete any provision of this Indenture insofar as it applies to such Series).
All
Securities of any one Series need not be issued at the same time, and may be issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to the Board Resolution, supplemental indenture or Officers’ Certificate referred to above,
however, the authorized principal amount of any Series may not be increased to provide for issuances of additional Securities of such
Series, unless otherwise provided in such Board Resolution, supplemental indenture or Officers’ Certificate.
| 2.3. |
EXECUTION AND AUTHENTICATION. |
The
Securities shall be executed on behalf of the Company by two Officers of the Company or an Officer and an Assistant Secretary of the
Company. Each such signature may be either manual or facsimile. The Company’s seal may be impressed, affixed, imprinted or reproduced
on the Securities and may be in facsimile form.
If
an Officer whose signature is on a Security no longer holds that office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A
Security shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent. The signature shall
be conclusive evidence that the Security has been authenticated under this Indenture. The Trustee shall at any time, and from time to
time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, supplemental indenture hereto
or Officers’ Certificate, upon receipt by the Trustee of a Company Order. Such Company Order may authorize authentication and delivery
pursuant to oral or electronic instructions from the Company or its duly authorized agent or agents, which oral instructions shall be
promptly confirmed in writing. Each Security shall be dated the date of its authentication.
The
aggregate principal amount of Securities of any Series outstanding at any time may not exceed any limit upon the maximum principal amount
for such Series set forth in the Board Resolution, supplemental indenture hereto or Officers’ Certificate delivered pursuant to
Section 2.2, except as provided in Section 2.8.
Prior
to the issuance of Securities of any Series, the Trustee shall have received and (subject to Section 7.1) shall be fully protected in
relying on: (a) the Board Resolution, supplemental indenture hereto or Officers’ Certificate establishing the form of the Securities
of that Series or of Securities within that Series and the terms of the Securities of that Series or of Securities within that Series,
(b) an Officers’ Certificate complying with Section 10.4, and (c) an Opinion of Counsel complying with Section 10.4.
The
Trustee shall have the right to decline to authenticate and deliver any Securities of any Series: (a) if the Trustee, being advised in
writing by outside counsel, determines that such action may not lawfully be taken; or (b) if the Trustee in good faith by its board of
directors or trustees, executive committee or a trust committee of directors and/or vice-presidents shall reasonably determine that such
action would expose the Trustee to personal liability, or cause it to have a conflict of interest with respect to Holders of any then
outstanding Series of Securities.
The
Trustee may appoint an authenticating agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Any appointment shall be evidenced by an instrument signed by an authorized officer of the
Trustee, a copy of which shall be furnished to the Company. Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an Agent to deal with the Company or an Affiliate of the
Company.
| 2.4. |
REGISTRAR AND PAYING AGENT. |
The
Company shall maintain in each Place of Payment for any Series of Securities (i) an office or agency where such Securities may be presented
for registration of transfer or for exchange (“Registrar”), (ii) an office or agency where such Securities may be presented
for payment (“Paying Agent”) (PROVIDED that the Company shall at all times maintain a Paying Agent in the Borough of Manhattan,
City of New York, State of New York (the “New York Paying Agent”), and PROVIDED, FURTHER, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the register
for the Securities maintained by the Registrar), and (iii) an office or agency where notices and demands to or upon the Company in respect
of the Securities and this Indenture may be served (“Service Agent”). The Registrar shall keep a register of the Securities
and of their transfer and exchange. The Company may have one or more co-registrars and one or more additional paying agents. The Company
shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office, or to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the Trustee as set forth in Section 10.2. If the Company acts
as Paying Agent, it shall segregate the money held by it for the payment of principal of, and interest and premium, if any, on, the Securities
and hold it as a separate trust fund. The Company may change any Paying Agent, Registrar, co-registrar or any other Agent without notice
to any Securityholder.
The
Company may also from time to time designate one or more other offices or agencies where the Securities may be presented or surrendered
for any or all such purposes, and may from time to time rescind such designations; PROVIDED, HOWEVER, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of
any Series for such purposes. The Company hereby initially designates the Corporate Trust Office of the Trustee as such office of the
Company. The Company shall give prompt written notice to the Trustee of such designation or rescission, and of any change in the location
of any such other office or agency.
The
Company shall enter into an appropriate agency agreement with any Registrar or Paying Agent not a party to this Indenture. The agreement
shall implement the provisions of this Indenture that relate to such Agent. The Company shall notify the Trustee of the name and address
of any such Agent. If the Company fails to maintain a Registrar or Paying Agent, or agent for service of notices and demands, or fails
to give the foregoing notice, the Trustee shall act as such. The Company hereby appoints the Trustee as the initial Registrar, Paying
Agent and Service Agent for each Series unless another Registrar, Paying Agent or Service Agent, as the case may be, is appointed prior
to the time Securities of that Series are first issued. The Company designates [●], as the New York Paying Agent, with offices at
[●].
| 2.5. |
PAYING AGENT TO HOLD ASSETS IN TRUST. |
The
Trustee as Paying Agent shall, and the Company shall require each Paying Agent other than the Trustee to agree in writing that each Paying
Agent shall, hold in trust for the benefit of the Holders of any Series of Securities or the Trustee all assets held by the Paying Agent
for the payment of principal of, or interest or premium, if any, on, such Series of Securities (whether such assets have been distributed
to it by the Company or any other obligor on such Series of Securities), and the Company and the Paying Agent shall notify the Trustee
in writing of any Default by the Company (or any other obligor on such Series of Securities) in making any such payment. The Company
at any time may require a Paying Agent to distribute all assets held by it to the Trustee and account for any assets disbursed, and the
Trustee may, at any time during the continuance of any payment default with respect to any Series of Securities, upon written request
to a Paying Agent, require such Paying Agent to distribute all assets held by it to the Trustee and to account for any assets distributed.
Upon distribution to the Trustee of all assets that shall have been delivered by the Company to the Paying Agent, the Paying Agent shall
have no further liability for such assets.
| 2.6. |
SECURITYHOLDER LISTS. |
The
Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses
of Securityholders of each Series of Securities. If the Trustee is not the Registrar, the Company shall furnish to the Trustee as of
each regular record date for the payment of interest on the Securities of a Series and before each related Interest Payment Date, and
at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require
of the names and addresses of Securityholders of each Series of Securities.
| 2.7. |
TRANSFER AND EXCHANGE. |
When
Securities of a Series are presented to the Registrar with a request to register the transfer thereof, the Registrar shall register the
transfer as requested if the requirements of applicable law are met, and when such Securities of a Series are presented to the Registrar
with a request to exchange them for an equal principal amount of other authorized denominations of Securities of the same Series, the
Registrar shall make the exchange as requested. To permit transfers and exchanges, upon surrender of any Security for registration of
transfer at the office or agency maintained pursuant to Section 2.4, the Company shall execute and the Trustee shall authenticate Securities
at the Registrar’s request.
If
Securities are issued as Global Securities, the provisions of Section 2.15 shall apply.
All
Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer
or exchange.
Every
Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Registrar
or a co-registrar) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the
Registrar or a co-registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.
Any
exchange or transfer shall be without charge, except that the Company may require payment by the Holder of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation to a transfer or exchange, but this provision shall not apply to
any exchange pursuant to Section 2.11, 3.6 or 8.5. The Trustee shall not be required to register transfers of Securities of any Series,
or to exchange Securities of any Series, for a period of 15 days before the record date for selection for redemption of such Securities.
The Trustee shall not be required to exchange or register transfers of Securities of any Series called or being called for redemption
in whole or in part, except the unredeemed portion of such Security being redeemed in part.
| 2.8. |
REPLACEMENT SECURITIES. |
If
a mutilated Security is surrendered to the Trustee, or if the Holder of a Security presents evidence to the satisfaction of the Company
and the Trustee that the Security has been lost, destroyed or wrongfully taken, the Company shall issue and the Trustee shall authenticate
a replacement Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
An indemnity bond may be required by the Company or the Trustee that is sufficient in the reasonable judgment of the Company or the Trustee,
as the case may be, to protect the Company, the Trustee or any Agent from any loss which any of them may suffer if a Security is replaced.
The Company may charge such Holder for the Company’s out-of-pocket expenses in replacing a Security, including the fees and expenses
of the Trustee. Every replacement Security shall constitute an original additional obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that Series duly issued hereunder.
| 2.9. |
OUTSTANDING SECURITIES. |
Securities
outstanding at any time are all Securities authenticated by the Trustee, except for those canceled by it, those delivered to it for cancellation
and those described in this Section 2.9 as not outstanding.
If
a Security is replaced pursuant to Section 2.8 (other than a mutilated Security surrendered for replacement), it ceases to be outstanding
until the Company and the Trustee receive proof satisfactory to each of them that the replaced Security is held by a bona fide purchaser.
A mutilated Security ceases to be outstanding upon surrender of such Security and replacement thereof pursuant to Section 2.8.
If
a Paying Agent holds on a Redemption Date or the Stated Maturity money sufficient to pay the principal of, premium, if any, and accrued
interest on, Securities payable on that date, and is not prohibited from paying such money to the Holders thereof pursuant to the terms
of this Indenture (PROVIDED, that if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made), then on and after that date such Securities cease to be outstanding
and interest on them ceases to accrue.
A
Security does not cease to be outstanding solely because the Company or an Affiliate holds the Security.
| 2.10. |
WHEN TREASURY SECURITIES DISREGARDED; DETERMINATION
OF HOLDERS’ ACTION. |
In
determining whether the Holders of the required aggregate principal amount of the Securities of any Series have concurred in any direction,
waiver or consent, the Securities of any Series owned by the Company or any other obligor on such Securities, or by any Affiliate of
any of them, shall be disregarded, except that for the purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Securities of such Series which the Trustee actually knows are so owned shall be so disregarded.
Securities of such Series so owned which have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction
of the Trustee the pledgee’s right so to act with respect to the Securities of such Series and that the pledgee is not the Company
or any other obligor on the Securities of such Series, or an Affiliate of any of them.
| 2.11. |
TEMPORARY SECURITIES. |
Until
definitive Securities are ready for delivery, the Company may prepare and execute, and the Trustee shall authenticate, temporary Securities.
Temporary Securities shall be substantially in the form, and shall carry all rights, of definitive Securities, but may have variations
that the Company considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and execute, and
the Trustee shall authenticate, definitive Securities in exchange for temporary Securities without charge to the Holder.
All
Securities surrendered for payment, redemption or registration of transfer or exchange, or for credit against any sinking fund payment,
shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee for cancellation. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired
in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange or payment. The Trustee or, at the direction of the Trustee, the Registrar
or the Paying Agent, and no one else, shall cancel, and at the written request of the Company shall dispose of, all Securities surrendered
for transfer, exchange, payment or cancellation. If the Company 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 surrendered to the Trustee
for cancellation pursuant to this Section 2.12. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled
as provided in this Section 2.12, except as expressly permitted by this Indenture.
| 2.13. |
PAYMENT OF INTEREST; DEFAULTED INTEREST; COMPUTATION
OF INTEREST. |
Except
as otherwise provided as contemplated by Section 2.2 with respect to any Series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security is
registered at the close of business on the regular record date for such interest, as provided in the Board Resolution, supplemental indenture
hereto or Officers’ Certificate establishing the terms of such Series.
If
the Company defaults in a payment of interest on the Securities, it shall pay the defaulted amounts, plus any interest payable on defaulted
amounts pursuant to Section 4.1, to the Persons who are Securityholders on a subsequent special record date, which date shall be the
15th day next preceding the date fixed by the Company for the payment of defaulted interest, or the next succeeding Business Day if such
date is not a Business Day. At least 15 days before the special record date, the Company shall mail or cause to be mailed to each Securityholder,
with a copy to the Trustee, a notice that states the special record date, the payment date and the amount of defaulted interest, and
interest payable on such defaulted interest, if any, to be paid.
Except
as otherwise specified as contemplated by Section 2.2 for Securities of any Series, interest on the Securities of each Series shall be
computed on the basis of a 360-day year of twelve 30-day months.
The
Company in issuing the Securities may use one or more “CUSIP” numbers, and, if the Company does so, the Trustee shall use
the CUSIP number(s) in notices of redemption or exchange as a convenience to Holders, PROVIDED, that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number(s) printed in the notice or on the Securities, and that
reliance may be placed only on the other identification numbers printed on the Securities, and that any such redemption or exchange shall
not be affected by any defect in or omission of any such numbers.
| 2.15. |
PROVISIONS FOR GLOBAL SECURITIES. |
(a)
A Board Resolution, a supplemental indenture hereto or an Officers’ Certificate shall establish whether the Securities of a Series
shall be issued in whole or in part in the form of one or more Global Securities, and the Depository for such Global Securities or Securities.
(b)
Notwithstanding any provisions to the contrary contained in Section 2.7 and in addition thereto, if, and only if the Depository (i) at
any time is unwilling or unable to continue as Depository for such Global Security or ceases to be a clearing agency registered under
the Exchange Act and (ii) a successor Depository is not appointed by the Company within 90 days after the date the Company is so informed
in writing or becomes aware of the same, the Company promptly will execute and deliver to the Trustee definitive Securities, and the
Trustee, upon receipt of a Company Request for the authentication and delivery of such definitive Securities (which the Company will
promptly execute and deliver to the Trustee) and an Officers’ Certificate to the effect that such Global Security shall be so exchangeable,
will authenticate and deliver definitive Securities, without charge, registered in such names and in such authorized denominations as
the Depository shall direct in writing (pursuant to instructions from its direct and indirect participants or otherwise) in an aggregate
principal amount equal to the principal amount of the Global Security with like tenor and terms. Upon the exchange of a Global Security
for definitive Securities, such Global Security shall be canceled by the Trustee. Unless and until it is exchanged in whole or in part
for definitive Securities, as provided in this Section 2.15(b), a Global Security may not be transferred except as a whole by the Depository
with respect to such Global Security to a nominee of such Depository, by a nominee of such Depository to such Depository or another nominee
of such Depository or by the Depository or any such nominee to a successor Depository or a nominee of such a successor Depository.
(c)
Any Global Security issued hereunder shall bear a legend in substantially the following form:
“This
Security is a Global Security within the meaning of the Indenture hereinafter referred to, and is registered in the name of the Depository
or a nominee of the Depository. This Security is exchangeable for Securities registered in the name of a Person other than the Depository
or its nominee only in the limited circumstances described in the Indenture, and may not be transferred except as a whole by the Depository
to a nominee of the Depository, by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository
or any such nominee to a successor Depository or a nominee of such a successor Depository.”
(d)
The Depository, as a Holder, may appoint agents and otherwise authorize participants to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action which a Holder is entitled to give or take under the Indenture.
(e)
Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.2, payment of the principal
of, and interest and premium, if any, on, any Global Security shall be made to the Depository or its nominee in its capacity as the Holder
thereof.
(f)
Except as provided in Section 2.15(e) above, the Company, the Trustee and any Agent shall treat a Person as the Holder of such principal
amount of outstanding Securities of any Series represented by a Global Security as shall be specified in a written statement of the Depository
(which may be in the form of a participants’ list for such Series) with respect to such Global Security, for purposes of obtaining
any consents, declarations, waivers or directions required to be given by the Holders pursuant to this Indenture, PROVIDED, that until
the Trustee is so provided with a written statement, it may treat the Depository or any other Person in whose name a Global Security
is registered as the owner of such Global Security for the purpose of receiving payment of the principal of, and any premium and (subject
to Section 2.13) any interest on, such Global Security and for all other purposes whatsoever, and none of the Company, the Trustee or
any agent of the Company or the Trustee shall be affected by notice to the contrary.
| 2.16. |
PERSONS DEEMED OWNERS. |
Prior
to due presentment of a Security for registration of transfer, the Company, the Trustee, the Registrar and any agent of the Company,
the Registrar or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose
of receiving payment of the principal of, and any premium and (subject to Section 2.13) any interest on, such Security and for all other
purposes whatsoever, and none of the Company, the Trustee, the Registrar or any agent of the Company, the Trustee or the Registrar shall
be affected by notice to the contrary.
ARTICLE
3
REDEMPTION
The
Company may, with respect to any Series of Securities, reserve the right to redeem and pay the Series of Securities, or may covenant
to redeem and pay the Series of Securities or any part thereof, prior to the Stated Maturity thereof at such time and on such terms as
provided for in such Securities or the related Board Resolution, supplemental indenture or Officers’ Certificate. If a Series of
Securities is redeemable and the Company elects to redeem all or part of such Series of Securities, it shall notify the Trustee of the
Redemption Date and the principal amount of Securities to be redeemed at least 45 days (unless a shorter notice shall be satisfactory
to the Trustee) before the Redemption Date. Any such notice may be canceled at any time prior to notice of such redemption being mailed
to any Holder, and shall thereby be void and of no effect.
| 3.2. |
SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED. |
Unless
otherwise indicated for a particular Series of Securities by a Board Resolution, a supplemental indenture or an Officers’ Certificate,
if fewer than all of the Securities of a Series are to be redeemed, the Trustee shall select the Securities of a Series to be redeemed
pro rata, by lot or by any other method that the Trustee considers fair and appropriate (unless the Company specifically directs the
Trustee otherwise) and, if such Securities are listed on any securities exchange, by a method that complies with the requirements of
such exchange.
The
Trustee shall make the selection from Securities of a Series outstanding and not previously called for redemption, and shall promptly
notify the Company in writing of the Securities selected for redemption and, in the case of any Security selected for partial redemption,
the principal amount thereof to be redeemed at least 35 but not more than 60 days before the Redemption Date. Securities of a Series
in denominations of $1,000 may be redeemed only in whole. The Trustee may select for redemption portions of the principal of Securities
of a Series that have denominations larger than $1,000. Securities of a Series and portions of them it selects shall be in amounts of
$1,000 or, with respect to Securities of any Series issuable in other denominations pursuant to Section 2.2(10), the minimum principal
denomination for each Series and integral multiples thereof. Provisions of this Indenture that apply to Securities called for redemption
also apply to portions of Securities called for redemption.
| 3.3. |
NOTICE OF REDEMPTION. |
Unless
otherwise indicated for a particular Series by Board Resolution, a supplemental indenture hereto or an Officers’ Certificate, at
least 30 days, and no more than 60 days, before a Redemption Date, the Company shall mail, or cause to be mailed, a notice of redemption
by first-class mail to each Holder of Securities to be redeemed at his or her last address as the same appears on the registry books
maintained by the Registrar. The notice shall identify the Securities to be redeemed and shall state:
(1)
the Redemption Date;
(2)
the redemption price, and that such redemption price shall become due and payable on the Redemption Date;
(3)
if any Security of a Series is being redeemed in part, the portion of the principal amount of such Security of a Series to be redeemed
and that, after the Redemption Date and upon surrender of such Security of a Series, a new Security or Securities in principal amount
equal to the unredeemed portion will be issued;
(4)
the name and address of the Paying Agent;
(5)
that Securities of a Series called for redemption must be surrendered to the Paying Agent to collect the redemption price, and the place
or places where each such Security is to be surrendered for such payment;
(6)
that, unless the Company defaults in making the redemption payment, interest on the Securities of a Series called for redemption ceases
to accrue on the Redemption Date, and the only remaining right of the Holders of such Securities is to receive payment of the redemption
price upon surrender to the Paying Agent of the Securities redeemed;
(7)
if fewer than all of the Securities of a Series are to be redeemed, the identification of the particular Securities of a Series (or portion
thereof) to be redeemed, as well as the aggregate principal amount of Securities of a Series to be redeemed and the aggregate principal
amount of Securities of a Series to be outstanding after such partial redemption.
(8)
the CUSIP number, if any, printed on the Securities being redeemed; and
(9)
that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the
Securities.
At
the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at the Company’s sole
expense.
| 3.4. |
EFFECT OF NOTICE OF REDEMPTION. |
Once
the notice of redemption described in Section 3.3 is mailed, Securities of a Series called for redemption become due and payable on the
Redemption Date and at the redemption price, plus interest, if any, accrued to the Redemption Date. Upon surrender to the Trustee or
Paying Agent, such Securities of a Series shall be paid at the redemption price, plus accrued interest, if any, to the Redemption Date;
PROVIDED, that if the Redemption Date is after a regular interest payment record date and on or prior to the next Interest Payment Date,
the accrued interest shall be payable to the Holder of the redeemed Securities registered on the relevant record date, as specified by
the Company in the notice to the Trustee pursuant to Section 3.1.
| 3.5. |
DEPOSIT OF REDEMPTION PRICE. |
On
or prior to the Redemption Date (but no later than 11:00 A.M. Eastern Time on such date), the Company shall deposit with the Paying Agent
money sufficient to pay the redemption price of and accrued interest, if any, on all Securities to be redeemed on that date other than
Securities or portions thereof called for redemption on that date which have been delivered by the Company to the Trustee for cancellation.
On
and after any Redemption Date, if money sufficient to pay the redemption price of, and accrued interest on, Securities called for redemption
shall have been made available in accordance with the preceding paragraph and the Company and the Paying Agent are not prohibited from
paying such moneys to Holders, the Securities called for redemption will cease to accrue interest and the only right of the Holders of
such Securities will be to receive payment of the redemption price of and, subject to the proviso in Section 3.4, accrued and unpaid
interest on such Securities to the Redemption Date. If any Security called for redemption shall not be so paid, interest will be paid,
from the Redemption Date until such redemption payment is made, on the unpaid principal of the Security and any interest or premium,
if any, not paid on such unpaid principal, in each case, at the rate and in the manner provided in the Securities.
| 3.6. |
SECURITIES REDEEMED IN PART. |
Upon
surrender of a Security of a Series that is redeemed in part, the Company shall execute, and the Trustee shall authenticate, for a Holder
a new Security of the same Series equal in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE
4
COVENANTS
| 4.1. |
PAYMENT OF SECURITIES. |
The
Company shall pay the principal of, and interest and premium, if any, on, each Series of Securities on the dates and in the manner provided
in such Securities and this Indenture.
An
installment of principal or interest shall be considered paid on the date it is due if the Trustee or Paying Agent holds on that date
money designated for and sufficient to pay such installment and is not prohibited from paying such money to the Holders pursuant to the
terms of this Indenture or otherwise.
The
Company shall pay interest on overdue principal, and overdue interest, to the extent lawful, at the rate specified in the Series of Securities.
The
Company will deliver to the Trustee within 15 days after the filing of the same with the SEC, copies of the quarterly and annual reports
and of the information, documents and other reports, if any, which the Company is required to file with the SEC pursuant to Section 13
or 15(d) of the Exchange Act; PROVIDED, HOWEVER, that each such report or document will be deemed to be so delivered to the Trustee if
the Company files such report or document with the SEC through the SEC’s EDGAR database no later than the time such report or document
is required to be filed with the SEC pursuant to the Exchange Act. Notwithstanding that the Company may not be subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the Company will file with the SEC, to the extent permitted, and provide the
Trustee with, such quarterly and annual reports and such information, documents and other reports specified in Sections 13 and 15(d)
of the Exchange Act. The Company will also comply with the other provisions of TIA Section 314(a).
| 4.3. |
WAIVER OF STAY, EXTENSION OR USURY LAWS. |
The
Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead (as a defense or otherwise)
or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension, usury or other law which would prohibit or
forgive the Company from paying all or any portion of the principal of, and/or interest and premium, if any, on, the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Indenture;
and the Company hereby expressly waives (to the extent that they may lawfully do so) all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution
of every such power as though no such law had been enacted.
| 4.4. |
COMPLIANCE CERTIFICATE. |
(a)
The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company, an Officers’ Certificate
which complies with TIA Section 314(a)(4) stating that a review of the activities of the Company and its Subsidiaries during such fiscal
year has been made under the supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed
and fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the
best of his or her knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture
and that there is no default in the performance or observance of any of the terms, provisions and conditions hereof (or, if a Default
or Event of Default shall have occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and
what action the Company is taking or proposes to take with respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the principal of, or interest or premium, if any, on, the
Securities is prohibited, or if such event has occurred, a description of the event and what action the Company is taking or proposes
to take with respect thereto.
(b)
(i) If any Default or Event of Default has occurred and is continuing or (ii) if any Holder seeks to exercise any remedy hereunder with
respect to a claimed Default under this Indenture or the Securities, within five Business Days after the Company becoming aware of such
occurrence the Company shall deliver to the Trustee an Officers’ Certificate specifying such event, notice or other action and
what action the Company is taking or proposes to take with respect thereto.
| 4.5. |
CORPORATE EXISTENCE. |
Subject
to Article 5, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate
existence, in accordance with the organizational documents (as the same may be amended from time to time) of the Company and the rights
(charter and statutory), licenses and franchises of the Company; PROVIDED, HOWEVER, that the Company shall not be required to preserve
any such right, license or franchise, or its corporate existence, if the Board of Directors shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and that the loss thereof is not adverse in any material respect
to the Holders.
ARTICLE
5
SUCCESSOR CORPORATION
| 5.1. |
LIMITATION ON CONSOLIDATION, MERGER AND SALE
OF ASSETS. |
(a)
The Company will not, in any transaction or series of transactions, merge or consolidate with or into, or sell, assign, convey, transfer,
lease or otherwise dispose of all or substantially all of its properties and assets (as an entirety or substantially as an entirety in
one transaction or a series of related transactions), to any Person or Persons, unless at the time of and after giving effect thereto
(i) either (A) if the transaction or series of transactions is a merger or consolidation, the Company shall be the surviving Person of
such merger or consolidation, or (B) the Person formed by such consolidation or into which the Company is merged or to which the properties
and assets of the Company are transferred (any such surviving Person or transferee Person being the “Surviving Entity”) shall
be a corporation organized and existing under the laws of the United States of America, any state thereof or the District of Columbia,
or a corporation or comparable legal entity organized under the laws of a foreign jurisdiction and shall expressly assume by a supplemental
indenture executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the Company
(including, without limitation, the obligation to pay the principal of, and premium and interest, if any, on, the Securities and the
performance of the other covenants) under the Securities of each Series and this Indenture, and in each case, this Indenture shall remain
in full force and effect; and (ii) immediately before and immediately after giving effect to such transaction or series of transactions
on a pro forma basis (including, without limitation, any Indebtedness incurred or anticipated to be incurred in connection with or in
respect of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing.
(b)
In connection with any consolidation, merger or transfer of assets contemplated by this Section 5.1, the Company shall deliver, or cause
to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers’ Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer, and the supplemental indenture in respect thereto, comply
with this Section 5.1, and that all conditions precedent herein provided for relating to such transaction or transactions have been complied
with.
| 5.2. |
SUCCESSOR PERSON SUBSTITUTED. |
Upon
any consolidation, merger or transfer of all or substantially all of the assets of the Company in accordance with Section 5.1 above,
the successor corporation formed by such consolidation, or into which the Company is merged or to which such transfer is made, shall
succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect
as if such successor corporation had been named as the Company herein, and thereafter (except with respect to any such transfer which
is a lease) the predecessor corporation shall be relieved of all obligations and covenants under this Indenture and the Securities.
ARTICLE
6
DEFAULTS AND REMEDIES
“Events
of Default,” wherever used herein with respect to Securities of any Series, means any one of the following events, unless in the
establishing Board Resolution, supplemental indenture or Officers’ Certificate, it is provided that such Series shall not have
the benefit of said Event of Default:
(1)
there is a default in the payment of any principal of, or premium, if any, on, the Securities when the same becomes due and payable at
Maturity, upon acceleration, redemption or otherwise;
(2)
there is a default in the payment of any interest on any Security of a Series when the same becomes due and payable, and the Default
continues for a period of 30 days;
(3)
the Company defaults in the observance or performance of any other covenant in the Securities of a Series or in this Indenture for 60
days after written notice from the Trustee or the Holders of not less than 25% in the aggregate principal amount of the Securities of
such Series then outstanding, which notice must specify the Default, demand that it be remedied and state that the notice is a “Notice
of Default”;
(4)
the Company or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
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(A) |
commences a voluntary case, |
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(B) |
consents to the entry of an order for relief
against it in an involuntary case, |
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(C) |
consents to the appointment of a Custodian
of it or for all or substantially all of its property, |
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(D) |
makes a general assignment for the benefit
of its creditors, or |
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(E) |
generally is not paying its debts as they become
due; |
(5)
a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
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(A) |
is for relief against the Company or any Significant
Subsidiary in an involuntary case; |
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(B) |
appoints a Custodian of the Company or any
Significant Subsidiary, or for all or substantially all of the property of the Company or any Significant Subsidiary; or |
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(C) |
orders the liquidation of the Company or any
Significant Subsidiary, and the order or decree remains unstayed and in effect for 90 consecutive days; or |
(6)
any other Event of Default provided with respect to Securities of that Series, which is specified in a Board Resolution, a supplemental
indenture hereto or an Officers’ Certificate, in accordance with Section 2.2(19).
The
term “Bankruptcy Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors. The term
“Custodian” means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
The
Trustee may withhold notice of any Default (except in the payment of the principal of, or interest or premium, if any, on, the Securities)
to the Holders of the Securities of any Series in accordance with Section 7.5. When a Default is cured, it ceases to exist.
If
an Event of Default with respect to Securities of any Series at the time outstanding (other than an Event of Default arising under Section
6.1(4) or (5)) occurs and is continuing, the Trustee by written notice to the Company, or the Holders of not less than 25% in aggregate
principal amount of the Securities of that Series then outstanding by written notice to the Company and the Trustee, may declare that
the entire principal amount of all the Securities of that Series then outstanding plus accrued and unpaid interest to the date of acceleration
are immediately due and payable, in which case such amounts shall become immediately due and payable; PROVIDED, HOWEVER, that after such
acceleration but before a judgment or decree based on such acceleration is obtained by the Trustee, the Holders of a majority in aggregate
principal amount of the outstanding Securities of that Series may rescind and annul such acceleration and its consequences if (i) all
existing Events of Default, other than the nonpayment of accelerated principal, interest or premium, if any, that has become due solely
because of the acceleration, have been cured or waived, (ii) to the extent the payment of such interest is lawful, interest on overdue
installments of interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid
and (iii) the rescission would not conflict with any judgment or decree. No such rescission shall affect any subsequent Default or impair
any right consequent thereto. In case an Event of Default specified in Section 6.1(4) or (5) with respect to the Company occurs, such
principal, premium, if any, and interest amount with respect to all of the Securities of that Series shall be due and payable immediately
without any declaration or other act on the part of the Trustee or the Holders of the Securities of that Series.
If
an Event of Default with respect to Securities of any Series at the time outstanding occurs and is continuing, the Trustee may pursue
any available remedy by proceeding at law or in equity to collect the payment of the principal of, or interest and premium, if any, on,
the Securities of that Series, or to enforce the performance of any provision of the Securities of that Series or this Indenture.
The
Trustee may maintain a proceeding even if it does not possess any of the Securities of that Series or does not produce any of them in
the proceeding. A delay or omission by the Trustee or any Securityholder in exercising any right or remedy accruing upon an Event of
Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive
of any other remedy. All available remedies are cumulative to the extent permitted by law.
| 6.4. |
WAIVER OF PAST DEFAULTS AND EVENTS OF DEFAULT. |
Subject
to Sections 6.2, 6.7 and 8.2, the Holders of a majority in principal amount of the Securities of any Series then outstanding have the
right to waive any existing Default or Event of Default with respect to such Series or compliance with any provision of this Indenture
(with respect to such Series) or the Securities of such Series. Upon any such waiver, such Default with respect to such Series shall
cease to exist, and any Event of Default with respect to such Series arising therefrom shall be deemed to have been cured for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent
thereto. This Section 6.4 shall be in lieu of TIA Section 316(a)(1)(B), and TIA Section 316(a)(1)(B) is hereby expressly excluded from
this Indenture and Section as permitted by the TIA.
| 6.5. |
CONTROL BY MAJORITY. |
Subject
to Sections 6.2, 6.7 and 8.2, the Holders of a majority in principal amount of the Securities of any Series then outstanding 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 by this Indenture with respect to such Series. The Trustee, however, may refuse to follow any direction that conflicts
with law or this Indenture, or that the Trustee determines may be unduly prejudicial to the rights of another Securityholder, or that
may involve the Trustee in personal liability; PROVIDED, that the Trustee may take any other action deemed proper by the Trustee which
is not inconsistent with such direction. This Section 6.5 shall be in lieu of TIA Section 316(a)(1)(A), and TIA Section 316(a)(1)(A)
is hereby expressly excluded from this Indenture and Section as permitted by the TIA.
| 6.6. |
LIMITATION ON SUITS. |
Subject
to Section 6.7, a Securityholder may not institute any proceeding or pursue any remedy with respect to this Indenture or the Securities
of a Series unless:
(1)
the Holder gives to the Trustee written notice of a continuing Event of Default with respect to the Securities of that Series;
(2)
the Holders of at least 25% in aggregate principal amount of the Securities of such Series then outstanding make a written request to
the Trustee to pursue the remedy;
(3)
such Holder or Holders offer to the Trustee indemnity reasonably satisfactory to the Trustee against any loss, liability or expense to
be incurred in compliance with such request;
(4)
the Trustee does not comply with the request within 60 days after receipt of the request and the offer of indemnity; and
(5)
no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority
in aggregate principal amount of the Securities of such Series then outstanding.
A
Securityholder may not use this Indenture to prejudice the rights of another Securityholder, or to obtain a preference or priority over
another Securityholder.
| 6.7. |
RIGHTS OF HOLDERS TO RECEIVE PAYMENT. |
Notwithstanding
any other provision of this Indenture, the right of any Holder of a Security of a Series to receive payment of the principal of, and
interest and premium, if any, on, the Security of such Series on or after the respective due dates expressed in the Security of such
Series, or to bring suit for the enforcement of any such payment on or after such respective dates, is absolute and unconditional, and
shall not be impaired or affected without the consent of the Holder.
| 6.8. |
COLLECTION SUIT BY TRUSTEE. |
If
an Event of Default in payment of principal, interest or premium, if any, specified in Section 6.1(1) or (2) with respect to Securities
of any Series at the time outstanding occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an
express trust against the Company (or any other obligor on the Securities of that Series) for the whole amount of unpaid principal and
premium, if any, and accrued interest remaining unpaid, together with interest on overdue principal and premium, if any, and, to the
extent that payment of such interest is lawful, interest on overdue installments of interest, in each case at the rate then borne by
the Securities of that Series, and such further amounts as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, as set forth in Section 7.7.
| 6.9. |
TRUSTEE MAY FILE PROOFS OF CLAIM. |
The
Trustee may file such proofs of claim and other papers or documents, and take other actions (including sitting on a committee of creditors),
as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the Securityholders allowed in any judicial proceedings relative
to the Company (or any other obligor on the Securities), any of their respective creditors or any of their respective property, and the
Trustee shall be entitled and empowered to collect and receive any monies or other property payable or deliverable on any such claims,
and to distribute the same after deduction of its charges and expenses to the extent that any such charges and expenses are not paid
out of the estate in any such proceedings, and any custodian in any such judicial proceeding is hereby authorized by each Securityholder
to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.7.
Nothing
herein contained shall be deemed to authorize the Trustee to authorize or consent to, or accept or adopt on behalf of any Securityholder,
any plan of reorganization, arrangement, adjustment or composition affecting the Securities of a 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 proceedings.
If
the Trustee collects any money pursuant to this Article 6, it shall pay out the money in the following order:
FIRST:
to the Trustee for amounts due under Section 7.7;
SECOND:
to Securityholders for amounts then due and unpaid for the principal of, and interest and premium, if any, on, the Securities in respect
of which, or for the benefit of which, such money has been collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities; for principal and any premium and interest, respectively; and
THIRD:
to the Company.
The
Trustee may fix a record date and payment date for any payment to Securityholders pursuant to this Section 6.10. At least 15 days before
such record date, the Trustee shall mail to each Securityholder a notice that states the record date, the payment date and amount to
be paid.
| 6.11. |
UNDERTAKING FOR COSTS. |
In
any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against
any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.7 or a suit by Holders of more than
10% in principal amount of the Securities of a Series then outstanding.
ARTICLE
7
TRUSTEE
(a)
If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a prudent Person would exercise or use under the same circumstances
in the conduct of his own affairs.
(b)
Except during the continuance of an Event of Default:
(1)
The Trustee need perform only those duties that are specifically set forth in this Indenture, and no covenants or obligations shall be
implied in this Indenture against the Trustee.
(2)
In the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture,
but, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture.
(c)
The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct,
except that:
(1)
This paragraph does not limit the effect of paragraph (b) of this Section 7.1.
(2)
The Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts.
(3)
The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received
by it pursuant to Sections 6.2 and 6.5.
(d)
No provision of this Indenture shall require the Trustee to expend or risk its own funds, or otherwise incur any financial liability,
in the performance of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate
indemnity satisfactory to it against such risk or liability is not reasonably assured to it.
(e)
Whether or not therein expressly so provided, paragraphs (a), (b), (c) and (d) of this Section 7.1 shall govern every provision of this
Indenture that in any way relates to the Trustee.
(f)
The Trustee and Paying Agent shall not be liable for interest on any money received by either of them, except as the Trustee and Paying
Agent may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the
extent required by the law.
(g)
The Paying Agent, the Registrar and any authenticating agent shall be entitled to the protections, immunities and standard of care set
forth in paragraphs (a), (b), (c), (d) and (f) of this Section 7.1 and in Section 7.2 with respect to the Trustee.
(a)
Subject to Section 7.1:
(1)
The Trustee may rely on, and shall be protected in acting or refraining from acting upon, any document reasonably believed by it to be
genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the
document.
(2)
Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel, or both, which
shall conform to the provisions of Section 10.5. The Trustee shall be protected and shall not be liable for any action it takes or omits
to take in good faith in reliance on such certificate or opinion.
(3)
The Trustee may act through agents and attorneys, and shall not be responsible for the misconduct or negligence of any agent appointed
by it with due care.
(4)
The Trustee shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized
or within its rights or powers.
(5)
The Trustee may consult with counsel reasonably acceptable to the Trustee, which may be counsel to the Company, and the advice or opinion
of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action
taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(6)
The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Holders pursuant to the provisions of this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby.
(7)
The Trustee shall not be deemed to have knowledge of any fact or matter (including, without limitation, a Default or Event of Default)
unless such fact or matter is known to a Responsible Officer of the Trustee.
(8)
Unless otherwise expressly provided herein or in the Securities of a Series or the related Board Resolution, supplemental indenture or
Officers’ Certificate, the Trustee shall not have any responsibility with respect to reports, notices, certificates or other documents
filed with it hereunder, except to make them available for inspection, at reasonable times, by Securityholders, it being understood that
delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt
of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein,
including the Company’s compliance with any of its covenants hereunder (except as set forth in Section 4.4).
| 7.3. |
INDIVIDUAL RIGHTS OF TRUSTEE. |
The
Trustee in its individual or any other capacity may become the owner or pledgee of Securities, and may make loans to, accept deposits
from, perform services for or otherwise deal with the Company, or any Affiliate thereof, with the same rights it would have if it were
not Trustee. Any Agent may do the same with like rights. The Trustee, however, shall be subject to Sections 7.10 and 7.11.
| 7.4. |
TRUSTEE’S DISCLAIMER. |
The
Trustee makes no representation as to the validity or adequacy of this Indenture or the Securities (except that the Trustee represents
that it is duly authorized to execute and deliver this Indenture and authenticate the Securities and perform its obligations hereunder),
and the Trustee shall not be accountable for the Company’s use of the proceeds from the sale of Securities or any money paid to
the Company pursuant to the terms of this Indenture, and the Trustee shall not be responsible for any statement in the Securities other
than its certificates of authentication.
If
a Default or an Event of Default occurs and is continuing with respect to the Securities of any Series, and if it is known to the Trustee,
the Trustee shall mail to each Securityholder of the Securities of that Series notice of the Default or the Event of Default, as the
case may be, within 90 days after it occurs or, if later, after a Responsible Officer of the Trustee has knowledge of such Default or
Event of Default (except if such Default or Event of Default has been validly cured or waived before the giving of such notice). Except
in the case of a Default or an Event of Default in payment of the principal of, or interest or premium, if any, on, any Security of any
Series, the Trustee may withhold the notice if and so long as the Board of Directors of the Trustee, the executive committee or any trust
committee of such board and/or its Responsible Officers in good faith determine(s) that withholding the notice is in the interests of
the Securityholders of that Series.
| 7.6. |
REPORTS BY TRUSTEE TO HOLDERS. |
If
and to the extent required by the TIA, within 60 days after April 1 of each year, commencing the April 1 following the date of this Indenture,
the Trustee shall mail to each Securityholder a brief report dated as of such April 1 that complies with TIA Section 313(a). The Trustee
also shall comply with TIA Sections 313(b) and 313(c).
A
copy of each report at the time of its mailing to Securityholders shall be filed with the SEC and any stock exchange on which the Securities
of that Series are listed. The Company shall promptly notify the Trustee when the Securities of any Series are listed on any stock exchange
or any delisting thereof, and the Trustee shall comply with TIA Section 313(d).
| 7.7. |
COMPENSATION AND INDEMNITY. |
The
Company shall pay to the Trustee from time to time reasonable compensation for its services. The Trustee’s compensation shall not
be limited by any provision of law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee within 45
days after receipt of request for all reasonable out-of-pocket disbursements and expenses incurred or made by it in connection with its
duties under this Indenture, including the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.
The
Company shall indemnify the Trustee for, and hold it harmless against, any and all loss or liability incurred by it in connection with
the acceptance or performance of its duties under this Indenture including the reasonable costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. The Trustee shall notify
the Company promptly of any claim asserted against the Trustee for which it may seek indemnity.
The
failure by the Trustee to so notify the Company shall not however relieve the Company of its obligations. Notwithstanding the foregoing,
the Company need not reimburse the Trustee for any expense or indemnify it against any loss or liability incurred by the Trustee through
its negligence or bad faith. To secure the payment obligations of the Company in this Section 7.7, the Trustee shall have a lien prior
to the Securities of any Series on all money or property held or collected by the Trustee except such money or property held in trust
to pay the principal of, interest and premium, if any, on particular Securities of that Series.
When
the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.1(4) or (5) occurs, the expenses and
the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law.
For
purposes of this Section 7.7, the term “Trustee” shall include any trustee appointed pursuant to this Article 7.
| 7.8. |
REPLACEMENT OF TRUSTEE. |
The
Trustee may resign with respect to the Securities of one or more Series by so notifying the Company in writing at least 90 days in advance
of such resignation.
The
Holders of a majority in principal amount of the outstanding Securities of any Series may remove the Trustee with respect to that Series
by notifying the removed Trustee in writing and may appoint a successor Trustee with respect to that Series with the consent of the Company,
which consent shall not be unreasonably withheld. The Company may remove the Trustee with respect to that Series at its election if:
(1)
the Trustee fails to comply with, or ceases to be eligible under, Section 7.10;
(2)
the Trustee is adjudged a bankrupt or an insolvent, or an order for relief is entered with respect to the Trustee, under any Bankruptcy
Law;
(3)
a Custodian or other public officer takes charge of the Trustee or its property; or
(4)
the Trustee otherwise becomes incapable of acting.
(5)
If the Trustee resigns or is removed, or if a vacancy exists in the office of Trustee, with respect to any Series of Securities for any
reason, the Company shall promptly appoint, by Board Resolution, a successor Trustee.
If
a successor Trustee with respect to the Securities of one or more Series does not take office within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company or the Holders of at least 10% in principal amount of the outstanding Securities
of the applicable Series may petition any court of competent jurisdiction for the appointment of a successor Trustee.
If
the Trustee with respect to the Securities of one or more Series fails to comply with Section 7.10, any Securityholder of the applicable
Series may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
A
successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately following
such delivery, (i) the retiring Trustee with respect to one or more Series shall, subject to its rights under Section 7.7, transfer all
property held by it as Trustee with respect to such Series to the successor Trustee, (ii) the resignation or removal of the retiring
Trustee shall become effective and (iii) the successor Trustee with respect to such Series shall have all the rights, powers and duties
of the Trustee under this Indenture. A successor Trustee with respect to the Securities of one or more Series shall mail notice of its
succession to each Securityholder of such Series.
| 7.9. |
SUCCESSOR TRUSTEE BY CONSOLIDATION, MERGER
OR CONVERSION. |
If
the Trustee, or any Agent, consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust assets
to, another corporation, subject to Section 7.10, the successor corporation without any further act shall be the successor Trustee or
Agent, as the case may be.
| 7.10. |
ELIGIBILITY; DISQUALIFICATION. |
This
Indenture shall always have a Trustee who satisfies the requirements of TIA Sections 310(a)(1), (2) and (5) in every respect. The Trustee
(or in the case of a Trustee that is a Person included in a bank holding company system, the related bank holding company) shall have
a combined capital and surplus of at least $100,000,000 as set forth in its most recent published annual report of condition. The Trustee
shall comply with TIA Section 310(b), including the provision in Section 310(b)(1). In addition, if the Trustee is a Person included
in a bank holding company system, the Trustee, independently of such bank holding company, shall meet the capital requirements of TIA
Section 310(a)(2). If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 7.10, it shall
resign immediately in the manner and with the effect specified in this Article 7.
| 7.11. |
PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. |
The
Trustee shall comply with TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated therein.
The
Company shall cause each Paying Agent other than the Trustee to execute and deliver to it and the Trustee an instrument in which such
agent shall agree with the Trustee, subject to the provisions of this Section 7.12:
(1)
that it will hold all sums held by it as agent for the payment of the principal of, or interest or premium, if any, on, the Securities
(whether such sums have been paid to it by the Company or by any obligor on the Securities) in trust for the benefit of Holders of the
Securities or the Trustee;
(2)
that it will at any time during the continuance of any Event of Default, upon written request from the Trustee, deliver to the Trustee
all sums so held in trust by it together with a full accounting thereof; and
(3)
that it will give the Trustee written notice within three Business Days after any failure of the Company (or by any obligor on the Securities)
in the payment of any installment of the principal of, or interest or premium, if any, on, the Securities when the same shall be due
and payable.
ARTICLE
8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
| 8.1. |
WITHOUT CONSENT OF HOLDERS. |
The
Company, when authorized by a Board Resolution, and the Trustee may amend or supplement this Indenture or the Securities of one or more
Series without notice to or consent of any Securityholder:
(1)
to comply with Section 5.1;
(2)
to provide for certificated Securities in addition to uncertificated Securities;
(3)
to comply with any requirements of the SEC under the TIA;
(4)
to cure any ambiguity, defect or inconsistency, or to make any other change herein or in the Securities that does not materially and
adversely affect the rights of any Securityholder;
(5)
to provide for the issuance of, and establish the form and terms and conditions of, Securities of any Series as permitted by this Indenture;
or
(6)
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.
The
Trustee is hereby authorized to join with the Company in the execution of any supplemental indenture authorized or permitted by the terms
of this Indenture, and to make any further appropriate agreements and stipulations which may be therein contained, but the Trustee shall
not be obligated to enter into any such supplemental indenture which adversely affects its own rights, duties or immunities under this
Indenture.
| 8.2. |
WITH CONSENT OF HOLDERS. |
(a)
The Company, when authorized by a Board Resolution, and the Trustee may amend or supplement this Indenture or the Securities of one or
more Series with the written consent of the Holders of not less than a majority in aggregate principal amount of the outstanding Securities
of such Series affected by such amendment or supplement without notice to any Securityholder. The Holders of not less than a majority
in aggregate principal amount of the outstanding Securities of each such Series affected by such amendment or supplement may waive compliance
by the Company in a particular instance with any provision of this Indenture or the Securities of such Series without notice to any Securityholder.
Subject to Section 8.4, without the consent of each Securityholder affected, however, an amendment, supplement or waiver may not:
(1)
reduce the amount of Securities whose Holders must consent to an amendment, supplement or waiver to this Indenture or the Securities;
(2)
reduce the rate of, or change the time for payment of, interest on any Security;
(3)
reduce the principal, or change the Stated Maturity, of any Security, or reduce the amount of, or postpone the date fixed for, the payment
of any sinking fund or analogous obligation;
(4)
make any Security payable in money other than that stated in the Security;
(5)
change the amount or time of any payment required by the Securities, or reduce the premium payable upon any redemption of the Securities,
or change the time before which no such redemption may be made;
(6)
waive a Default or Event of Default in the payment of the principal of, or interest or premium, if any, on, any Security (except a rescission
of acceleration of the Securities of any Series by the Holders of at least a majority in principal amount of the outstanding Securities
of such Series and a waiver of the payment default that resulted from such acceleration);
(7)
waive a redemption payment with respect to any Security, or change any of the provisions with respect to the redemption of any Securities;
(8)
make any changes in Section 6.6 or this Section 8.2, except to increase any percentage of Securities the Holders of which must consent
to any matter; or
(9)
take any other action otherwise prohibited by this Indenture to be taken without the consent of each Holder affected thereby.
(b)
Upon the request of the Company, accompanied by a Board Resolution authorizing the execution of any such supplemental indenture, and
upon the receipt by the Trustee of evidence reasonably satisfactory to the Trustee of the consent of the Securityholders as aforesaid
and of the documents described in Section 8.6, the Trustee shall join with the Company in the execution of such supplemental indenture,
unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture.
(c)
It shall not be necessary for the consent of the Holders under this section to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the substance thereof.
After
an amendment or supplement under this Section becomes effective, the Company shall mail to Securityholders a notice briefly describing
the amendment or supplement. Any failure of the Company to mail any such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any supplemental indenture.
| 8.3. |
COMPLIANCE WITH TRUST INDENTURE ACT. |
Every
amendment to, or supplement of, this Indenture or the Securities shall comply with the TIA as then in effect.
| 8.4. |
REVOCATION AND EFFECT OF CONSENTS. |
Until
an amendment, supplement, waiver or other action becomes effective, a consent to it by a Holder of a Security is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder of the same Security or portion thereof, and of any Security issued
upon the transfer thereof or in exchange therefor or in place thereof, even if notation of the consent is not made on any such Security.
Any such Holder or subsequent Holder, however, may revoke the consent as to his Security or portion of a Security, if the Trustee receives
the notice of revocation before the date the amendment, supplement, waiver or other action becomes effective.
The
Company may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be at least 30 days prior to the first solicitation of such consent. If a record date is
fixed, then, notwithstanding the preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies),
and only such Persons, shall be entitled to consent to such amendment, supplement or waiver, or to revoke any consent previously given,
whether or not such Persons continue to be Holders after such record date.
After
an amendment, supplement, waiver or other action becomes effective, it shall bind every Securityholder, unless it makes a change described
in any of clauses (1) through (9) of Section 8.2. In that case, the amendment, supplement, waiver or other action shall bind each Holder
of a Security who has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt
as the consenting Holder’s Security; PROVIDED, that any such waiver shall not impair or affect the right of any Holder to receive
payment of the principal of, and interest and premium, if any, on, a Security, on or after the respective due dates expressed in such
Security, or to bring suit for the enforcement of any such payment on or after such respective dates without the consent of such Holder.
| 8.5. |
NOTATION ON OR EXCHANGE OF SECURITIES. |
If
an amendment, supplement or waiver changes the terms of a Security of any Series, the Trustee may request the Holder of such Security
to deliver it to the Trustee. In such case, the Trustee shall place an appropriate notation on such Security about the changed terms
and return it to the Holder. Alternatively, the Company, in exchange for such Security, may issue, and the Trustee shall authenticate,
a new security that reflects the changed terms. Failure to make the appropriate notation or issue a new Security shall not affect the
validity and effect of such amendment, supplement or waiver.
| 8.6. |
TRUSTEE TO SIGN AMENDMENTS, ETC. |
The
Trustee shall sign any amendment, supplement or waiver authorized pursuant to this Article 8 if the amendment, supplement or waiver does
not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may, but need not, sign it.
In signing or refusing to sign such amendment, supplement or waiver the Trustee shall be entitled to receive and, subject to Section
7.1, shall be fully protected in relying upon an Officers’ Certificate and an Opinion of Counsel stating that such amendment, supplement
or waiver is authorized or permitted by this Indenture. The Company may not sign an amendment or supplement until the Board of Directors
of the Company approves it.
ARTICLE
9
DISCHARGE OF INDENTURE; DEFEASANCE
| 9.1. |
DISCHARGE OF INDENTURE. |
The
Company may terminate its obligations under the Securities of any Series and this Indenture with respect to such Series, except the obligations
referred to in the last paragraph of this Section 9.1, if there shall have been canceled by the Trustee, or delivered to the Trustee
for cancellation, all Securities of such Series theretofore authenticated and delivered (other than any Securities of such Series that
are asserted to have been destroyed, lost or stolen and that shall have been replaced as provided in Section 2.8) and the Company has
paid all sums payable by it hereunder or deposited all required sums with the Trustee.
After
such delivery the Trustee upon request shall acknowledge in a writing prepared by or on behalf of the Company the discharge of the Company’s
obligations under the Securities of such Series and this Indenture, except for those surviving obligations specified below.
Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the Company in Sections 7.7, 9.5 and 9.6 shall survive.
The
Company may at its option, by Board Resolution, be discharged from its obligations with respect to the Securities of any Series on the
date upon which the conditions set forth in Section 9.4 below are satisfied (hereinafter, “Legal Defeasance”). For this purpose,
such Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the Securities
of such Series and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are
concerned (and the Trustee, at the expense of the Company, shall, subject to Section 9.6, execute proper instruments acknowledging the
same, as are delivered to it by the Company), except for the following, which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of outstanding Securities of such Series to receive solely from the trust funds described in Section
9.4 and as more fully set forth in such section, payments in respect of the principal of, and interest and premium, if any, on, the Securities
of such Series when such payments are due, (B) the Company’s obligations with respect to the Securities of such Series under Sections
2.4, 2.5, 2.6, 2.7, 2.8 and 2.9, (C) the rights, powers, trusts, duties and immunities of the Trustee hereunder (including claims of,
or payments to, the Trustee under or pursuant to Section 7.7) and (D) this Article 9. Subject to compliance with this Article 9, the
Company may exercise its option under this Section 9.2 with respect to the Securities of any Series notwithstanding the prior exercise
of its option under Section 9.3 below with respect to the Securities of such Series.
| 9.3. |
COVENANT DEFEASANCE. |
At
the option of the Company, pursuant to a Board Resolution, the Company shall be released from its obligations with respect to the outstanding
Securities of any Series under Sections 4.2 through 4.5, inclusive, and Section 5.1, with respect to the outstanding Securities of such
Series, on and after the date the conditions set forth in Section 9.4 are satisfied (hereinafter, “Covenant Defeasance”).
For this purpose, such Covenant Defeasance means that the Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such specified section or portion thereof, whether directly or indirectly by reason of
any reference elsewhere herein to any such specified Section or portion thereof or by reason of any reference in any such specified section
or portion thereof to any other provision herein or in any other document, but the remainder of this Indenture and the Securities of
any Series shall be unaffected thereby.
| 9.4. |
CONDITIONS TO LEGAL DEFEASANCE OR COVENANT
DEFEASANCE. |
The
following shall be the conditions to application of Section 9.2 or Section 9.3 to the outstanding Securities of a Series:
(1)
the Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements
of Section 7.10 who shall agree to comply with the provisions of this Article 9 applicable to it) as 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,
(A) money in an amount, or (B) U.S. Government Obligations or Foreign Government Obligations which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an
amount, or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, the principal of, and accrued interest and premium, if any, on, the outstanding Securities
of such Series at the Stated Maturity of such principal, interest or premium, if any, or on dates for payment and redemption of such
principal, interest and premium, if any, selected in accordance with the terms of this Indenture and of the Securities of such Series;
(2)
no Event of Default or Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such
deposit, or shall have occurred and be continuing at any time during the period ending on the 91st day after the date of such deposit
or, if longer, ending on the day following the expiration of the longest preference period under any Bankruptcy Law applicable to the
Company in respect of such deposit as specified in the Opinion of Counsel identified in paragraph (8) below (it being understood that
this condition shall not be deemed satisfied until the expiration of such period);
(3)
such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest for purposes of the TIA with
respect to any securities of the Company;
(4)
such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute default under, any other agreement
or instrument to which the Company is a party or by which it is bound;
(5)
the Company shall have delivered to the Trustee an Opinion of Counsel stating that, as a result of such Legal Defeasance or Covenant
Defeasance, neither the trust nor the Trustee will be required to register as an investment company under the Investment Company Act
of 1940, as amended;
(6)
in the case of an election under Section 9.2, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i)
the Company has received from, or there has been published by, the Internal Revenue Service a ruling to the effect that or (ii) there
has been a change in any applicable Federal income tax law with the effect that, and such opinion shall confirm that, the Holders of
the outstanding Securities of such Series or Persons in their positions will not recognize income, gain or loss for Federal income tax
purposes solely as a result of such Legal Defeasance and will be subject to Federal income tax on the same amounts, in the same manner,
including as a result of prepayment, and at the same times as would have been the case if such Legal Defeasance had not occurred;
(7)
in the case of an election under Section 9.3, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that
the Holders of the outstanding Securities of such Series will not recognize income, gain or loss for Federal income tax purposes as a
result of such Covenant Defeasance, and will be subject to Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had not occurred;
(8)
the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for in this Article 9 relating to either the Legal Defeasance under Section 9.2 or the Covenant Defeasance under Section
9.3 (as the case may be) have been complied with;
(9)
the Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit under clause (1) was not made
by the Company with the intent of defeating, hindering, delaying or defrauding any creditors of the Company or others; and
(10)
the Company shall have paid, or duly provided for payment under terms mutually satisfactory to the Company and the Trustee, all amounts
then due to the Trustee pursuant to Section 7.7.
| 9.5. |
DEPOSITED MONEY AND U.S. AND FOREIGN GOVERNMENT
OBLIGATIONS TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS. |
All
money, U.S. Government Obligations and Foreign Government Obligations (including the proceeds thereof) deposited with the Trustee pursuant
to Section 9.4 in respect of the outstanding Securities shall be held in trust and applied by the Trustee, in accordance with the provisions
of such Securities and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to the
Holders of such Securities, of all sums due and to become due thereon in respect of principal, accrued interest and premium, if any,
but such money need not be segregated from other funds except to the extent required by law.
The
Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations
and Foreign Government Obligations deposited pursuant to Section 9.4 or the principal, interest and premium, if any, received in respect
thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Securities.
Anything
in this Article 9 to the contrary notwithstanding, but subject to payment of any of its outstanding fees and expenses, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money, U.S. Government Obligations or Foreign Government Obligations
held by the Trustee as provided in Section 9.4 which, in the opinion of a nationally-recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required
to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
If
the Trustee or Paying Agent is unable to apply any money, U.S. Government Obligations or Foreign Government Obligations in accordance
with Section 9.1, 9.2, 9.3 or 9.4 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the Company’s obligations under this Indenture and
the Securities shall be revived and reinstated as though no deposit had occurred pursuant to this Article 9 until such time as the Trustee
or Paying Agent is permitted to apply all such money, U.S. Government Obligations or Foreign Government Obligations, as the case may
be, in accordance with Section 9.1, 9.2, 9.3 or 9.4; PROVIDED, HOWEVER, that if the Company has made any payment of principal of, or
accrued interest or premium, if any, on, any Securities because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the money, U.S. Government Obligations or Foreign Government
Obligations held by the Trustee or Paying Agent.
| 9.7. |
MONEYS HELD BY PAYING AGENT. |
In
connection with the satisfaction and discharge of this Indenture, all moneys then held by any Paying Agent under the provisions of this
Indenture shall, upon demand of the Company, be paid to the Trustee, or, if sufficient moneys have been deposited pursuant to Section
9.1, to the Company, and thereupon such Paying Agent shall be released from all further liability with respect to such moneys.
| 9.8. |
MONEYS HELD BY TRUSTEE. |
Any
moneys deposited with the Trustee or any Paying Agent or then held by the Company in trust for the payment of the principal of, or interest
or premium, if any, on, any Security that are not applied but remain unclaimed by the Holder of such Security for two years after the
date upon which the principal of, or interest or premium, if any, on, such Security shall have respectively become due and payable shall
be repaid to the Company upon Company Request, or if such moneys are then held by the Company in trust, such moneys shall be released
from such trust; and the Holder of such Security entitled to receive such payment shall thereafter, as an unsecured general creditor,
look only to the Company for the payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money
shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or any such Paying Agent, before being required to make any such repayment,
may, at the expense of the Company, either mail to each Securityholder affected, at the address shown in the register of the Securities
maintained by the Registrar, or cause to be published once a week for two successive weeks, in a newspaper published in the English language,
customarily published each Business Day and of general circulation in the City of New York, New York, a notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such mailing or publication,
any unclaimed balance of such moneys then remaining will be repaid to the Company. After payment to the Company or the release of any
money held in trust by the Company, Securityholders entitled to the money must look only to the Company for payment as general creditors,
unless applicable abandoned property law designates another Person.
ARTICLE
10
MISCELLANEOUS
| 10.1. |
TRUST INDENTURE ACT CONTROLS. |
If
any provision of this Indenture limits, qualifies or conflicts with another provision which is required to be included in this Indenture
by the TIA, the required provision shall control. If any provision of this Indenture modifies or excludes any provision of the TIA which
may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as
the case may be.
Any
notice or communication shall be given in writing and delivered in Person, sent by facsimile (and receipt confirmed by telephone or electronic
transmission report), delivered by commercial courier service or mailed by first-class mail, postage prepaid, addressed as follows:
If
to the Company:
Nephros,
Inc.
380
Lackawanna Place
South
Orange, New Jersey 07079
Fax:
(201) ___-____
Attention:
Chief Financial Officer
Copy
to:
Fredrikson
& Byron, P.A.
60
South Sixth Street, Suite 1500
Minneapolis,
MN 55402
Fax:
(612) 492-7077
Attention:
Christopher J. Melsha, Esq.
If
to the Trustee:
__________________________
__________________________
__________________________
__________________________
The
Company or the Trustee by written notice to the other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication to the Company or the Trustee shall be deemed to have been given or made as of the date so delivered if personally
delivered; when receipt is confirmed by telephone or electronic transmission report, if sent by facsimile; and three Business Days after
mailing if sent by registered or certified mail, postage prepaid (except that a notice of change of address shall not be deemed to have
been given until actually received by the addressee).
Any
notice or communication mailed to a Securityholder shall be mailed to such Securityholder by first-class mail, postage prepaid, at such
Securityholder’s address shown on the register kept by the Registrar.
Failure
to mail, or any defect in, a notice or communication to a Securityholder shall not affect its sufficiency with respect to other Securityholders.
If a notice or communication to a Securityholder is mailed in the manner provided above, it shall be deemed duly given, three Business
Days after such mailing, whether or not the addressee receives it.
In
case by reason of the suspension of regular mail service, or by reason of any other cause, it shall be impossible to mail any notice
as required by this Indenture, then such method of notification as shall be made with the approval of the Trustee shall constitute a
sufficient mailing of such notice.
In
the case of Global Securities, notices or communications to be given to Securityholders shall be given to the Depository, in accordance
with its applicable policies as in effect from time to time.
In
addition to the manner provided for in the foregoing provisions, notices or communications to Securityholders shall be given by the Company
by release made to Reuters Economic Services and Bloomberg Business News.
| 10.3. |
COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS. |
Securityholders
of any Series may communicate pursuant to TIA Section 312(b) with other Securityholders of that Series or any other Series with respect
to their rights under this Indenture or the Securities of that Series or any other Series. The Company, the Trustee, the Registrar and
any other Person shall have the protection of TIA Section 312(c).
| 10.4. |
CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. |
Upon
any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
(1)
an Officers’ Certificate (which shall include the statements set forth in Section 10.5 below) stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and
(2)
an Opinion of Counsel (which shall include the statements set forth in Section 10.5 below) stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
| 10.5. |
STATEMENT REQUIRED IN CERTIFICATE AND OPINION. |
Each
certificate and opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than pursuant to
Section 4.4) shall include:
(1)
a statement that the Person making such certificate or opinion has read such covenant or condition;
(2)
a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3)
a statement that, in the opinion of such Person, it or he has made such examination or investigation as is necessary to enable it or
him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4)
a statement as to whether or not, in the opinion of such Person, such covenant or condition has been complied with.
| 10.6. |
RULES BY TRUSTEE AND AGENTS. |
The
Trustee may make reasonable rules for action by or at meetings of Securityholders. The Registrar and Paying Agent may make reasonable
rules for their functions.
| 10.7. |
BUSINESS DAYS; LEGAL HOLIDAYS; PLACE OF PAYMENT. |
A
“Business Day” is a day that is not a Legal Holiday. A “Legal Holiday” is a Saturday, a Sunday, a federally-recognized
holiday or a day on which banking institutions are not authorized or required by law, regulation or executive order to be open in the
State of New York.
If
a payment date is a Legal Holiday at a Place of Payment, payment may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period. “Place of Payment” means the place or places where the
principal of, and interest and premium, if any, on, the Securities of a Series are payable as specified as contemplated by Section 2.2.
If the regular record date is a Legal Holiday, the record date shall not be affected.
THIS
INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
| 10.9. |
NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. |
This
Indenture may not be used to interpret another indenture, loan, security or debt agreement of the Company or any Subsidiary thereof.
No such indenture, loan, security or debt agreement may be used to interpret this Indenture.
| 10.10. |
NO RECOURSE AGAINST OTHERS. |
A
director, officer, employee, stockholder or incorporator, as such, of the Company shall not have any liability for any obligations of
the Company under the Securities or the Indenture. Each Securityholder by accepting a Security waives and releases all such liability.
Such waiver and release are part of the consideration for the issuance of the Securities.
All
covenants and agreements of the Company in this Indenture and the Securities shall bind the Company’s successors and assigns, whether
so expressed or not. All agreements of the Trustee, any additional trustee and any Paying Agents in this Indenture shall bind their respective
successors and assigns.
| 10.12. |
MULTIPLE COUNTERPARTS. |
The
parties may sign multiple counterparts of this Indenture. Each signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
| 10.13. |
TABLE OF CONTENTS, HEADINGS, ETC. |
The
table of contents, cross-reference sheet and headings of the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Each
provision of this Indenture shall be considered separable, and if for any reason any provision which is not essential to the effectuation
of the basic purpose of this Indenture or the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired thereby, and a Holder shall have no claim therefor against any
party hereto.
| 10.15. |
SECURITIES IN A FOREIGN CURRENCY OR IN EUROS. |
Unless
otherwise specified in a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate delivered pursuant to Section
2.2 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 coin or currency other
than Dollars (including Euros), 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 at such
time. For purposes of this Section 10.15, “Market Exchange Rate” shall mean the noon Dollar buying rate in New York City
for cable transfers of that currency as published by the Federal Reserve Bank of New York; PROVIDED, HOWEVER, in the case of Euros, Market
Exchange Rate shall mean the rate of exchange determined by the Commission of the European Union (or any successor thereto) as published
in the Official Journal of the European Union (such publication or any successor publication, the “Journal”). If such Market
Exchange Rate is not available for any reason with respect to such currency, the Trustee shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank of New York or, in the case of Euros, the rate of exchange as published
in the Journal, as of the most recent available date, or quotations or, in the case of Euros, rates of exchange from one or more major
banks in New York City or in the country of issue of the currency in question or, in the case of Euros, in Luxembourg or such other quotations
or, in the case of Euros, rates of exchange as the Trustee, upon consultation with the Company, 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 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 Trustee regarding the Market Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in the Trustee’s 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 Company and all Holders.
| 10.16. |
JUDGMENT CURRENCY. |
The
Company 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 or premium, if any, or other amount 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 Trustee 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 Business Day, in which instance, the rate of exchange used shall be the rate at which, in accordance
with normal banking procedures, the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on
the Business 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.
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
| |
NEPHROS,
INC. |
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By: |
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Name: |
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Title: |
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| |
[Name
of Trustee] |
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By: |
|
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Name: |
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Title: |
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By: |
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Name: |
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Title: |
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Exhibit
5.1
May
10, 2024
Nephros,
Inc.
380
Lackawanna Place
South
Orange, New Jersey 07079
Re:
Nephros, Inc. Registration Statement on Form S-3
Ladies
and Gentlemen:
We
have acted as counsel to Nephros, Inc., a Delaware corporation (the “Company”), in connection with the Company’s Registration
Statement on Form S-3 (the “Registration Statement”) to be filed with the Securities and Exchange Commission pursuant to
the Securities Act of 1933, as amended (the “Act”), for the registration of the sale from time to time of (i) shares of common
stock, par value $0.001, of the Company (the “Common Stock”); (ii) shares of preferred stock, par value $0.001, of the Company
(the “Preferred Stock”); (iii) debt securities (the “Debt Securities”), which may be issued pursuant to an indenture
to be entered into between the Company and a trustee, as amended from time to time (the “Indenture”); (iv) warrants to purchase
Common Stock, Preferred Stock, Debt Securities and other securities or rights (the “Warrants”); and (v) units (the “Units”)
consisting of one or more shares of Common Stock, shares of Preferred Stock, Warrants, Debt Securities, or any combination of such securities
(collectively, the Common Stock, the Preferred Stock, the Debt Securities, the Warrants and the Units are referred to herein as the “Securities”).
We
have examined originals or copies, certified and otherwise identified to our satisfaction, of such documents, corporate records, certificates
of public officials and other instruments as we have deemed necessary for the purposes of rendering this opinion. In addition, as to
certain factual matters relevant to the opinions expressed below, we have relied upon representations, statements and certificates of
officers of the Company.
On
the basis of the foregoing and the other provisions set forth herein, we are of the opinion as of this date that:
1. When
the necessary corporate action on the part of the Company has been taken to authorize the issuance and sale of shares of Common Stock
proposed to be sold by the Company, and when such shares of Common Stock are issued and delivered in accordance with the applicable underwriting
or other agreement against payment therefor (in excess of par value thereof) or upon conversion or exercise of any security offered under
the Registration Statement (the “Offered Security”), in accordance with terms of such Offered Security or the instrument
governing such Offered Security providing for such conversion or exercise as approved by the Board of Directors, for the consideration
approved by the Board of Directors (which consideration is not less than the par value of the Common Stock), such shares of Common Stock
will be validly issued, fully-paid and non-assessable.
2. Upon
proper designation of the relative rights, preferences and limitations of any series of Preferred Stock by the Board of Directors of
the Company and the proper filing with the Secretary of State of the State of Delaware of a Certificate of Designation relating to such
series of Preferred Stock, when the necessary corporate action on the part of the Company has been taken to authorize the issuance and
sale of such series of Preferred Stock proposed to be sold by the Company, and when such shares of Preferred Stock are issued and delivered
in accordance with the applicable underwriting or other agreement against payment therefor (in excess of par value thereof), such shares
of Preferred Stock will be validly issued, fully paid and non-assessable.
3. When
the specific terms of a particular series of Debt Securities have been duly authorized and established in accordance with the Indenture
and such Debt Securities have been duly authorized, executed, authenticated, issued and delivered in accordance with the Indenture and
the applicable underwriting or other agreement, such Debt Securities will constitute binding obligations of the Company.
4. When
the Warrants have been duly authorized and established by the Company, the applicable warrant agreement and the applicable warrant certificates
have been duly authorized, executed and delivered, and the Warrants have been duly issued and delivered by the Company, the Warrants
will constitute binding obligations of the Company.
5. When
the Units have been duly authorized and established by the Company, the necessary corporate action on the part of the Company has been
taken to authorize and execute and deliver or issue the securities underlying such Units, and the applicable Unit agreement has been
duly authorized, executed and delivered, the Units will constitute binding obligations of the Company.
We
have assumed, among other things, the genuineness of all signatures and authenticity of all documents submitted to us as originals and
the conformity to original documents of all documents submitted to us as copies. In examining documents, we have assumed that parties,
other than the Company, have all necessary power to enter into and perform all of their obligations thereunder and have also assumed
the due authorization by all requisite action of the execution, delivery and performance of such documents by such parties, that such
documents are legal, valid, binding and enforceable obligations of such parties in accordance with their respective terms and that the
representations and warranties made in such documents by any parties are true and correct. We have also assumed that each natural person
executing any document relating to the matters covered by this opinion letter has the capacity and is legally competent to do so.
In
connection with the opinions expressed above, we have assumed that, at or prior to the time of the delivery of any such security, (i)
the Board of Directors shall have duly established the terms of such security and duly authorized the issuance and sale of such security
and such authorization shall not have been modified or rescinded; (ii) the Registration Statement shall be effective and such effectiveness
shall not have been terminated or rescinded; and (iii) there shall not have occurred any change in law affecting the validity, binding
nature or enforceability of such security. We have also assumed that none of the terms of any security to be established subsequent to
the date hereof, nor the issuance and delivery of such security, nor the compliance by the Company with the terms of such security will
violate, or fail to comply with, any applicable law affecting the validity, binding nature or enforceability of such security, or will
result in a violation of any provision of any instrument or agreement then binding upon the Company, or any restriction imposed by any
court or governmental body having jurisdiction over the Company.
Our
opinions expressed above are specifically subject to the following additional limitations, exceptions, qualifications and assumptions:
(A) The
legality, validity, binding nature and enforceability of the Company’s obligations under the Securities may be subject to or limited
by (1) bankruptcy, insolvency, reorganization, arrangement, fraudulent transfer or conveyance, equitable subordination, moratorium and
other similar laws affecting the rights of creditors generally; (2) general principles of equity (whether relief is sought in a proceeding
at law or in equity), including, without limitation, concepts of materiality, reasonableness, good faith, fair dealing, commercial practice,
estoppel, diligence, unconscionability, right to cure, election of remedies, and the discretion of any court of competent jurisdiction
or of any arbiter in awarding specific performance or injunctive relief and other equitable remedies different from that provided in
the Securities; (3) the limitations or restrictions on a party’s ability to enforce contractual rights or bring a cause of action
under state law or within the courts of such state if such party has failed to comply with applicable qualification, authorization, registration,
notice or similar filing requirements of such state; and (4) without limiting the generality of the foregoing, (a) principles requiring
the consideration of the impracticability or impossibility of performance of the Company’s obligations at the time of the attempted
enforcement of such obligations, (b) the effect of court decisions and statutes that indicate that any provisions of the Securities that
permit a party to take action or make determinations may be subject to a requirement that such action be taken or such determinations
be made on a reasonable basis in good faith or that it be shown that such action is reasonably necessary for the party’s protection,
and (c) public policy considerations.
(B) We
express no opinion as to the enforceability of provisions (i) to the effect that rights or remedies may be exercised without notice and
failure or delay to exercise is not a waiver of rights or remedies, that every right or remedy is cumulative, not exclusive, and may
be exercised in addition to or with any other right or remedy, or that election of a particular remedy or remedies does not preclude
recourse to one or more remedies, (ii) prohibiting waivers of any terms of the Securities other than in writing, or prohibiting oral
modifications thereof or modification by course of dealing, or (iii) that may be unenforceable under certain circumstances but the inclusion
of which does not affect the validity of the Security taken as a whole. In addition, our opinions are subject to the effect of judicial
decisions that may permit the introduction of extrinsic evidence to interpret the terms of written contracts such as the Securities.
The
foregoing opinion is limited to the corporate laws of the states of Delaware and New York and the federal laws of the United States of
America.
We
hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our name under the caption
“Legal Matters” in the prospectus. 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.
| |
Very
truly yours, |
| |
|
| |
FREDRIKSON
& BYRON, P.A. |
| |
|
| |
/s/ Christopher
J. Melsha |
| |
By: |
Christopher J. Melsha |
| |
Its: |
Vice President |
Exhibit
23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
hereby consent to the incorporation by reference in the Prospectus constituting a part of this Registration Statement of our report dated
March 15, 2024, relating to the consolidated financial statements of Nephros, Inc. (the “Company”) as of and for the years
ended December 31, 2023, and 2022, which appears in the Company’s Annual Report on Form 10-K for the year ended December 31, 2023.
We
also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/
Baker Tilly US, LLP
Tewksbury,
Massachusetts
May
10, 2024
Exhibit
107
Calculation
of Filing Fee Tables
Form
S-3
(Form
Type)
Nephros,
Inc.
(Exact
Name of Registrant as Specified in its Charter)
Table
1: Newly Registered and Carry Forward Securities
| | |
Security
Type | |
Security
Class
Title | |
Fee
Calculation
or Carry
Forward Rule | |
Amount
Registered (1) | | |
Proposed
Maximum
Offering
Price
Per Unit (1) | | |
Maximum
Aggregate
Offering Price
(1) | | |
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 | |
Equity, Other Debt, Other Unallocated (Universal Shelf) | |
Common Stock, par value $0.001 per share, Preferred Stock, par value $0.001 per share, Warrants, Debt Securities, Units | |
457(o) | |
| | | |
| | | |
$ | 50,000,000 | | |
$ | 0.00014760 | | |
$ | 7,380 | | |
| | | |
| | | |
| | | |
| | |
| | |
| |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| Fees Previously Paid | |
| |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| | |
| |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| Carry Forward Securities |
| | |
| |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| Carry Forward Securities | |
| |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| | |
| |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| | |
Total Offering Amounts | | |
| | | |
$ | 50,000,000 | | |
$ | 0.00014760 | | |
$ | 7,380 | | |
| | | |
| | | |
| | | |
| | |
| | |
Total Fees Previously Paid | | |
| | | |
| | | |
| | | |
$ | 0 | | |
| | | |
| | | |
| | | |
| | |
| | |
Total Fee Offsets | | |
| | | |
| | | |
| | | |
$ | 0 | | |
| | | |
| | | |
| | | |
| | |
| | |
Net Fee Due | | |
| | | |
| | | |
| | | |
$ | 7,380 | | |
| | | |
| | | |
| | | |
| | |
| (1) |
The
securities registered by this registration statement may be sold separately, together with other securities registered or as units
consisting of a combination of securities registered hereunder. As permitted by Rule 457(o) under the Securities Act of 1933, as
amended, the number of securities of each class of securities registered hereunder is not specified. The registrant is registering
hereunder an indeterminate number of shares of common stock, shares of preferred stock, warrants to purchase shares of common stock,
warrants to purchase any of the other securities offered hereby, debt securities, and units comprised of any of the securities offered
hereby of the registrant as may from time to time be issued at indeterminate prices. The maximum offering price for each class of
securities will be determined from time to time by the registrant in connection with the issuance of the securities registered by
this registration statement. In no event, however, will the maximum aggregate offering price of all securities issued under this
registration statement exceed $50,000,000. Pursuant to Rule 416 under the Securities Act, this registration statement also registers
such indeterminate number of shares of common stock as may be issued from time to time upon conversion of, or exchange for, securities
registered hereunder or as a result of share splits, share capitalizations, or similar transactions. |
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