As filed with the Securities and Exchange Commission
on February 23, 2024
Registration Statement No. 333-_______
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
CITIUS PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
Nevada |
|
27-3425913 |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer
Identification Number) |
11 Commerce Drive, First Floor
Cranford, New Jersey 07016
Telephone: (908) 967-6677
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Leonard Mazur
Chief Executive Officer
11 Commerce Drive, First Floor
Cranford, New Jersey 07016
Telephone: (908) 967-6677
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Lorna A. Knick
Alexander M. Donaldson
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607
Telephone: (919) 781-4000
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, please check the following box and list the Securities Act registration statement number
of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration
statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction
I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the
Securities Act, check the following box. ☐
If this Form is a post-effective amendment 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, 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 pursuant
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 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 or accept an offer to buy these securities
until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell
these securities, and we are not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
Subject
to completion, dated February 23, 2024
Prospectus
$250,000,000
Common
Stock
Preferred Stock
Debt Securities
Warrants
Units and/or
Rights
We
may offer and sell from time to time up to $250,000,000 of our shares of common stock, shares of preferred stock, debt securities, warrants,
rights to purchase common stock, preferred stock, debt securities or units, in one or more offerings in amounts, at prices and on terms
that we will determine at the time of offering.
This
prospectus provides you with a description of our securities and a general description of the other securities we may offer. A prospectus
supplement containing specific information about the terms of the securities being offered and the offering, including the compensation
of any underwriter, agent or dealer, will accompany this prospectus to the extent required. Any prospectus supplement may also add, update
or change information contained in this prospectus. If information in any prospectus supplement is inconsistent with the information
in this prospectus, then the information in that prospectus supplement will apply and will supersede the information in this prospectus.
You should carefully read both this prospectus and any prospectus supplement, together with additional information described in “Where
You Can Find Additional Information” and “Incorporation of Documents by Reference”, before you invest in our securities.
Investing
in our securities involves a high degree of risk. See “Risk Factors” beginning on page 4 of this prospectus, in
any accompanying prospectus supplement and in the documents incorporated by reference into this prospectus and any accompanying
prospectus supplement, to read about factors you should consider before investing in our securities.
Our
common stock is listed on the Nasdaq Capital Market under the symbol “CTXR”. The last reported sale price of our common stock
on February 20, 2024 was $0.75 per share. We recommend that you obtain current market quotations for our common stock prior to making
an investment decision.
Neither
the Securities and Exchange Commission nor any other regulatory body has approved or disapproved of these securities or passed upon the
accuracy or adequacy 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 on Form S-3 that we filed with the Securities and Exchange Commission, or the SEC, using
a “shelf” registration process or continuous offering process. By using a shelf registration statement, we may from time
to time, offer shares of our common stock, shares of our preferred stock, debt securities, warrants for such securities, rights to purchase
common stock, preferred stock, debt securities or units, and units that include any of these securities, in one or more offerings, up
to a total dollar amount of $250,000,000.
This
prospectus provides you with a general description of the securities we may offer. Each time we offer securities under this prospectus,
we will provide a prospectus supplement that will contain specific information about the terms of that offering.
We
may sell the securities (a) through agents; (b) through underwriters or dealers; (c) directly to one or more purchasers; or (d) through
a combination of any of these methods of sale. See “Plan of Distribution” on page 6. A prospectus supplement (or pricing
supplement), which we will provide to you each time we offer securities using this registration statement, will provide the names of
any underwriters, dealers, or agents involved in the sale of the securities, and any applicable fee, commission or discount arrangements
with them.
This
prospectus does not contain all of the information included in the registration statement. For a more complete understanding of the offering
of the securities, you should refer to the registration statement, including its exhibits. Prospectus supplements may also add, update
or change information contained or incorporated by reference in this prospectus. However, no prospectus supplement will fundamentally
change the terms that are set forth in this prospectus or offer a security that is not registered and described in this prospectus at
the time of its effectiveness. This prospectus, together with any applicable prospectus supplements and the documents incorporated by
reference into this prospectus or any prospectus supplement, will include material information relating to the offering. You should carefully
read this prospectus, the applicable prospectus supplement, the information and documents incorporated herein and therein by reference
and the additional information under the heading “Where You Can Find Additional Information” and “Incorporation of
Documents by Reference” before making an investment decision.
You
should rely only on the information we have provided or incorporated by reference in this prospectus or any prospectus supplement. We
have not authorized anyone to provide you with information different from that contained or incorporated by reference in this prospectus
or any prospectus supplement. No dealer, salesperson or other person is authorized to give any information or to represent anything not
contained or incorporated by reference in this prospectus or any prospectus supplement. You must not rely on any unauthorized information
or representation. This prospectus is an offer to sell only the securities offered hereby, but only under circumstances and in jurisdictions
where it is lawful to do so. You should assume that the information in this prospectus or any prospectus supplement is accurate only
as of the date on the front of the document and that any information we have incorporated herein or therein by reference is accurate
only as of the date of the document incorporated by reference, regardless of the time of delivery of this prospectus and any prospectus
supplement or any sale of a security.
To
the extent there are inconsistencies between this prospectus, any prospectus supplement and any documents incorporated by reference,
the document with the most recent date will control.
This
prospectus may not be used to consummate sales of our securities, unless it is accompanied by a prospectus supplement.
Unless
the context otherwise requires, we use the terms “Citius”, “the Company”, “our company”, “we”,
“us”, and “our” in this prospectus to refer to the consolidated operations of Citius Pharmaceuticals, Inc. and
its consolidated subsidiaries as a whole.
We
own or have rights to various U.S. federal trademark registrations and applications, and unregistered trademarks and servicemarks, including
Mino-Lok® and LYMPHIRTM. All other trade names, trademarks and service marks appearing in this prospectus are the property
of their respective owners. We have assumed that the reader understands that all such terms are source-indicating. Accordingly, such
terms, when first mentioned in this prospectus, appear with the trade name, trademark or service mark notice and then throughout the
remainder of this prospectus without trade name, trademark or service mark notices for convenience only and should not be construed as
being used in a descriptive or generic sense.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS AND INDUSTRY DATA
This
prospectus contains forward-looking statements that are based on our management’s belief and assumptions and on information currently
available to our management. Although we believe that the expectations reflected in these forward-looking statements are reasonable,
these statements relate to future events or our future financial performance, and involve known and unknown risks, uncertainties and
other factors that may cause our actual results, levels of activity, performance or achievements to be materially different from any
future results, levels of activity, performance or achievements expressed or implied by these forward-looking statements. Forward-looking
statements in this prospectus include, but are not limited to, statements about:
| ● | the
cost, timing, and results of our pre-clinical and clinical trials; |
| ● | our
ability to raise funds for general corporate purposes and operations, including our pre-clinical
and clinical trials; |
| ● | our
ability to apply for, obtain and maintain required regulatory approvals for our product candidates
the commercial feasibility and success of our technology and our product candidates; |
| ● | our
ability to recruit qualified management and technical personnel to carry out our operations; |
| ● | our
ability to realize some or all of the benefits expected to result from the anticipated spinoff
of Citius Oncology, Inc., or the delay of such benefits; |
| ● | our
ongoing businesses may be adversely affected and subject to certain risks and consequences
as a result of the anticipated spinoff transaction;
and |
| ● | other
factors discussed in “Risk Factors” and elsewhere in this prospectus or incorporated
by reference herein. |
In
some cases, you can identify forward-looking statements by terminology such as “may”, “will”, “should”,
“expects”, “intends”, “plans”, “anticipates”, “believes”, “estimates”,
“predicts”, “potential”, “continue” or the negative of these terms or other comparable terminology.
These statements are only predictions. You should not place undue reliance on forward-looking statements because they involve known and
unknown risks, uncertainties and other factors, which are, in some cases, beyond our control and which could materially affect results.
Factors that may cause actual results to differ materially from current expectations include, among other things, those listed under
“Risk Factors” and elsewhere in this prospectus or incorporated by reference herein. Actual events or results may vary significantly
from those implied or projected by the forward-looking statements. No forward-looking statement is a guarantee of future performance.
You should read this prospectus and the documents that we incorporate by reference in this prospectus and have filed with the SEC as
exhibits to this prospectus completely and with the understanding that our actual future results may be materially different from any
future results expressed or implied by these forward-looking statements. The forward-looking statements in this prospectus or incorporated
herein by reference represent our views as of the date of this prospectus or the document incorporated by reference herein. We anticipate
that subsequent events and developments will cause our views to change. However, while we may elect to update these forward-looking statements
at some point in the future, we have no current intention of doing so except to the extent required by applicable law. You should therefore
not rely on these forward-looking statements as representing our views as of any date subsequent to the date of this prospectus.
This
prospectus and the documents incorporated by reference into this prospectus contain “forward-looking statements” that involve
risks and uncertainties, as well as assumptions that, if they never materialize or prove incorrect, could cause our results to differ
materially from those expressed or implied by such forward-looking statements. The statements contained in this prospectus and the documents
incorporated by reference into this prospectus that are not purely historical are forward-looking statements within the meaning of Section
27A of the Securities Act of 1933, as amended, or Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended,
or Exchange Act.
This
prospectus, the documents incorporated by reference into this prospectus and the documents that we have filed as exhibits to the registration
statement, of which this prospectus is a part, include statistical and other industry and market data that we obtained from industry
publications and research, surveys and studies conducted by third parties. Industry publications and third-party research, surveys and
studies generally indicate that their information has been obtained from sources believed to be reliable, although they do not guarantee
the accuracy or completeness of such information. We believe that the data obtained from these industry publications and third-party
research, surveys and studies are reliable. We are ultimately responsible for all disclosure included in this prospectus.
You
should rely only on the information contained in this prospectus, as supplemented and amended. We have not authorized anyone to provide
you with information that is different. This prospectus may only be used where it is legal to sell these securities. The information
in this prospectus may only be accurate on the date of this prospectus.
In
addition, projections, assumptions, and estimates of our future performance and the future performance of the industry in which we operate
are necessarily subject to a high degree of uncertainty and risk due to a variety of factors, including those described in “Risk
Factors”. These and other factors could cause results to differ materially from those expressed in the estimates made by the independent
parties and by us.
THE
COMPANY
Citius
Pharmaceuticals, Inc., headquartered in Cranford, New Jersey, is a late-stage pharmaceutical company dedicated to the development and
commercialization of first-in-class critical care products with a focus on oncology, anti-infectives in adjunct cancer care, unique prescription
products and stem cell therapy. Our goal generally is to achieve leading market positions by providing therapeutic products that address
unmet medical needs yet have a lower development risk than usually is associated with new chemical entities. New formulations of previously
approved drugs with substantial existing safety and efficacy data are a core focus. We seek to reduce development and clinical risks
associated with drug development, yet still focus on innovative applications. Our strategy centers on products that have intellectual
property and regulatory exclusivity protection, while providing competitive advantages over other existing therapeutic approaches.
Since
our inception, we have devoted substantially all of our efforts to business planning, acquiring our proprietary technology, research
and development, recruiting management and technical staff, and raising capital. We are developing four proprietary product candidates:
LYMPHIR, in-licensed in September 2021 (now owned by Citius Oncology), an engineered IL-2 diphtheria
toxin fusion protein, for the treatment of patients with persistent or recurrent cutaneous T-cell lymphoma (“CTCL”); Mino-Lok,
an antibiotic lock solution used to treat patients with catheter-related bloodstream infections by salvaging the infected catheter; Halo-Lido,
a corticosteroid-lidocaine topical formulation that is intended to provide anti-inflammatory and anesthetic relief to persons suffering
from hemorrhoids; and NoveCite, a mesenchymal stem cell therapy for the treatment of acute respiratory distress syndrome (ARDS). We believe
these unique markets for our product candidates are large, growing and underserved by the current prescription products or procedures.
Corporate
History and Information
We
were founded as Citius Pharmaceuticals, LLC, a Massachusetts limited liability company, on January 23, 2007. On September 12, 2014, Citius
Pharmaceuticals, LLC entered into a Share Exchange and Reorganization Agreement, with Citius Pharmaceuticals, Inc. (formerly Trail One,
Inc.), a publicly traded company incorporated under the laws of the State of Nevada. Citius Pharmaceuticals, LLC became our wholly-owned
subsidiary. On March 30, 2016, we acquired Leonard-Meron Biosciences, Inc. (“LMB”) as a wholly-owned subsidiary. LMB was
a pharmaceutical company focused on the development and commercialization of critical care products with a concentration on anti-infectives.
On September 11, 2020, we formed NoveCite, Inc. (“NoveCite”), a Delaware corporation, of which we own 75% of the issued and
outstanding capital stock. NoveCite is focused on the development and commercialization of its proprietary mesenchymal stem cells for
the treatment of ARDS.
On
August 23, 2021, we formed Citius Oncology, Inc. (formerly Citius Acquisition Corp.) (“Citius Oncology”) as a wholly-owned
subsidiary in conjunction with the acquisition of LYMPHIR, but Citius Oncology did not begin operations until April 2022, when we transferred
the assets related to LYMPHIR to Citius Oncology, including the related license agreement with Eisai Co., Ltd. and the related asset
purchase agreement with Dr. Reddy’s Laboratories SA, a subsidiary of Dr. Reddy’s Laboratories, Ltd. Since its inception,
we have funded Citius Oncology, and we and Citius Oncology are party to a shared services agreement, which governs certain management
and scientific services that we provide to Citius Oncology. In May 2022, we announced that we intend to spin off Citius Oncology
as a separate publicly traded company, and in October 2023, we announced that we entered into an agreement on October 23, 2023, with
publicly traded TenX Keane Acquisition for a proposed merger whereby TenX would acquire Citius Oncology as a wholly owned subsidiary.
Our
principal executive offices are located at 11 Commerce Drive, First Floor, Cranford, New Jersey 07016 and our telephone number is (908)
967-6677.
RISK
FACTORS
Investing
in our securities involves a high degree of risk. You should consider carefully the risks and uncertainties described in “Risk
Factors” in our most recently filed Annual Report on Form 10-K filed with the SEC, in each case as these risk factors are amended
or supplemented by subsequent Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, or Current Reports on Form 8-K that have been
or will be incorporated by reference in this prospectus. The prospectus supplement relating to a particular offering of our securities
may also discuss certain risks of investing in that offering. The risks set forth herein and in any prospectus supplement and incorporated
herein and therein by reference are those which we believe are the material risks that we face. The occurrence of any of such risks may
materially and adversely affect our business, financial condition, results of operations and future prospects. In such an event, the
market price of our common stock could decline, and you could lose part or all of your investment.
USE
OF PROCEEDS
We
cannot assure you that we will receive any proceeds in connection with securities offered by us pursuant to this prospectus. Unless otherwise
provided in the applicable prospectus supplement, we intend to use the net proceeds from the sale of our securities by us under this
prospectus for general corporate purposes, including clinical trials, research and development expenses, and general and administrative
expenses. We will set forth in the applicable prospectus supplement our intended use for the net proceeds received from the sale of any
securities by us. Pending the application of any net proceeds, we intend to invest the net proceeds generally in short-term, investment
grade, interest-bearing securities.
PLAN
OF DISTRIBUTION
We
may sell the securities from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination
of these methods. We may sell the securities to or through underwriters or dealers, through agents, or directly to one or more purchasers.
We may distribute securities from time to time in one or more transactions:
| ● | at
a fixed price or prices, which may be changed; |
| ● | at
market prices prevailing at the time of sale; |
| ● | at
prices related to such prevailing market prices; or |
In
addition, we may issue the securities as a dividend or distribution or in a subscription rights offering to our existing security holders.
We
may directly solicit offers to purchase securities, or agents may be designated to solicit such offers. In the prospectus supplement
relating to such offering, we will name any agent that could be viewed as an underwriter under the Securities Act and describe any commissions
that we must pay to any such agent. Any such agent will be acting on a best efforts basis for the period of its appointment or, if indicated
in the applicable prospectus supplement, on a firm commitment basis. This prospectus may be used in connection with any offering of our
securities through any of these methods or other methods described in the applicable prospectus supplement.
A
prospectus supplement or supplements (and any related free writing prospectus that we may authorize to be provided to you) will describe
the terms of the offering of the securities, including, to the extent applicable:
| ● | the
name or names of the underwriters, if any; |
| ● | the
purchase price of the securities or other consideration therefor, and the proceeds and use
of proceeds, if any, we will receive from the sale; |
| ● | any
public offering price; |
| ● | any
over-allotment options under which underwriters may purchase additional securities from us; |
| ● | any
agency fees or underwriting discounts and other items constituting agents’ or underwriters’
compensation; |
| ● | any
discounts or concessions allowed or reallowed or paid to dealers; and |
| ● | any
securities exchange or market on which the securities may be listed. |
If
any underwriters or agents are used in the sale of the securities in respect of which this prospectus is delivered, we will enter into
an underwriting agreement, sales agreement or other agreement with them at the time of sale to them, and we will set forth in the prospectus
supplement relating to such offering the names of the underwriters or agents and the terms of the related agreement with them.
In
connection with the offering of securities, we may grant to the underwriters an option to purchase additional securities with an additional
underwriting commission, as may be set forth in the accompanying prospectus supplement. If we grant any such option, the terms of such
option will be set forth in the prospectus supplement for such securities.
If
a dealer is used in the sale of the securities in respect of which the prospectus is delivered, we will sell such securities to the dealer,
as principal. The dealer, who may be deemed to be an “underwriter” as that term is defined in the Securities Act, may then
resell such securities to the public at varying prices to be determined by such dealer at the time of resale.
If
we offer securities in a subscription rights offering to our existing security holders, we may enter into a standby underwriting agreement
with dealers, acting as standby underwriters. We may pay the standby underwriters a commitment fee for the securities they commit to
purchase on a standby basis. If we do not enter into a standby underwriting arrangement, we may retain a dealer-manager to manage a subscription
rights offering for us.
Agents,
underwriters, dealers and other persons may be entitled under agreements which they may enter into with us to indemnification by us against
certain civil liabilities, including liabilities under the Securities Act, and may be customers of, engage in transactions with or perform
services for us in the ordinary course of business.
If
so indicated in the applicable prospectus supplement, we will authorize underwriters or other persons acting as our agents to solicit
offers by certain institutions to purchase securities from us pursuant to delayed delivery contracts providing for payment and delivery
on the date stated in the prospectus supplement. Each contract will be for an amount not less than, and the aggregate amount of securities
sold pursuant to such contracts shall not be less nor more than, the respective amounts stated in the prospectus supplement. Institutions
with whom the contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and other institutions, but shall in all cases be subject to our approval. Delayed
delivery contracts will not be subject to any conditions except that:
| ● | the
purchase by an institution of the securities covered under that contract shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which that institution
is subject; and |
| ● | if
the securities are also being sold to underwriters acting as principals for their own account,
the underwriters shall have purchased such securities not sold for delayed delivery. The
underwriters and other persons acting as our agents will not have any responsibility in respect
of the validity or performance of delayed delivery contracts. |
Offered
securities may also be offered and sold, if so indicated in the prospectus supplement, in connection with a remarketing upon their purchase,
in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more remarketing firms, acting as principals
for their own accounts or as agents for us. Any remarketing firm will be identified and the terms of its agreement, if any, with us and
its compensation will be described in the applicable prospectus supplement. Remarketing firms may be deemed to be underwriters in connection
with their remarketing of offered securities.
Certain
agents, underwriters and dealers, and their associates and affiliates, may be customers of, have borrowing relationships with, engage
in other transactions with, or perform services, including investment banking services, for us or one or more of our respective affiliates
in the ordinary course of business.
In
order to facilitate the offering of the securities, any underwriters may engage in transactions that stabilize, maintain or otherwise
affect the price of the securities or any other securities the prices of which may be used to determine payments on such securities.
Specifically, any underwriters may over allot in connection with the offering, creating a short position for their own accounts. In addition,
to cover overallotments or to stabilize the price of the securities or of any such other securities, the underwriters may bid for, and
purchase, the securities or any such other securities in the open market. Finally, in any offering of the securities through a syndicate
of underwriters, the underwriting syndicate may reclaim selling concessions allowed to an underwriter or a dealer for distributing the
securities in the offering if the syndicate repurchases previously distributed securities in transactions to cover syndicate short positions,
in stabilization transactions or otherwise. Any of these activities may stabilize or maintain the market price of the securities above
independent market levels. Any such underwriters are not required to engage in these activities and may end any of these activities at
any time.
We
may engage in at the market offerings into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act. In
addition, we may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties
in privately negotiated transactions. If the applicable prospectus supplement so indicates, in connection with those derivatives, the
third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions.
If so, the third party may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related
open borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings
of stock. The third party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be named in
the applicable prospectus supplement (or a post-effective amendment). In addition, we may otherwise loan or pledge securities to a financial
institution or other third party that in turn may sell the securities short using this prospectus and an applicable prospectus supplement.
Such financial institution or other third party may transfer its economic short position to investors in our securities or in connection
with a concurrent offering of other securities.
The
securities may be new issues of securities and may have no established trading market. The securities may or may not be listed on a national
securities exchange. We can make no assurance as to the liquidity of or the existence of trading markets for any of the securities that
may be offered.
The
specific terms of any lock-up provisions in respect of any given offering will be described in the applicable prospectus supplement.
The
underwriters, dealers and agents may engage in transactions with us, or perform services for us, in the ordinary course of business for
which they receive compensation.
The
anticipated date of delivery of offered securities will be set forth in the applicable prospectus supplement relating to each offer.
DESCRIPTION
OF OUR CAPITAL STOCK
The
following description summarizes the material terms of our capital stock as of the date of this prospectus. Because it is only a summary,
it does not contain all the information that may be important to you. For a complete description of our capital stock, you should
refer to our Amended and Restated Articles of Incorporation, as amended (the “Articles of Incorporation”), and our Amended
and Restated Bylaws (the “Bylaws”), and to the provisions of applicable Nevada law.
General
Our
authorized capital stock consists of 400,000,000 shares of common stock, par value $0.001, of which 159,094,781 shares were issued and
outstanding as of February 20, 2024, and 10,000,000 shares of preferred stock, none of which are issued and outstanding.
Our
preferred stock and/or common stock may be issued from time to time without prior approval by our stockholders. Our preferred stock and/or
common stock may be issued for such consideration as may be fixed from time to time by our Board of Directors.
Common
Stock
We
are authorized to issue 400,000,000 shares of common stock, $0.001 par value. Each share of common stock has one vote per share for all
purposes. The holders of a majority of the shares entitled to vote, present in person or represented by proxy shall constitute a quorum
at all meetings of our stockholders. Our common stock does not provide preemptive, subscription or conversion rights and there are no
redemption or sinking fund provisions or rights. Our common stockholders are not entitled to cumulative voting for election of the Board
of Directors.
Holders
of common stock are entitled to receive ratably such dividends as may be declared by the Board of Directors out of funds legally available
therefor as well as any distributions to the security holders. We have never paid cash dividends on our common stock, and do not expect
to pay such dividends in the foreseeable future.
In
the event of a liquidation, dissolution or winding up of our company, holders of common stock are entitled to share ratably in all of
our assets remaining after payment of liabilities.
Preferred
Stock
We
are authorized to issue 10,000,000 shares of preferred stock. Our Board of Directors is authorized to cause us to issue, from our authorized
but unissued shares of preferred stock, one or more series of preferred stock, to establish from time to time the number of shares to
be included in each such series, as well as to fix the designation and any preferences, conversion and other rights and limitations of
such series. These rights and limitations may include voting powers, limitations as to dividends, and qualifications and terms and conditions
of redemption of the shares of each such series.
Options
As
of December 31, 2023, under our 2014 Stock Incentive Plan, 2018 Omnibus Stock Incentive Plan, 2020 Omnibus Stock Incentive Plan, 2021
Omnibus Stock Incentive Plan and 2023 Omnibus Stock Incentive Plan, we had outstanding options to purchase an aggregate of 17,390,171
shares of our common stock at a weighted average exercise price of $1.54 per share. Of these, an aggregate of 9,231,839 are exercisable.
The remainder have vesting requirements. No more grants may be made under our 2014 Stock Incentive Plan, 2018 Omnibus Stock Incentive
Plan, 2020 Omnibus Stock Incentive Plan, or 2021 Omnibus Stock Incentive Plan.
Warrants
As
of December 31, 2023, we had outstanding warrants to purchase an aggregate of 50,704,847 shares of our common stock at a weighted average
price of $1.50 per share, with a weighted average remaining life of 2.50 years.
Trading
Market
The
shares of our common stock are currently listed on the Nasdaq Capital Market under the symbol “CTXR.”
Transfer
Agent
The
transfer agent of our common stock is VStock Transfer. Their address is 18 Lafayette Place, Woodmere, NY 11598.
Nevada’s
Anti-Takeover Law and Provisions of Our Articles of Incorporation and Bylaws
Acquisition
of Controlling Interest Statutes. Nevada’s “acquisition of controlling interest” statutes contain provisions
governing the acquisition of a controlling interest in certain Nevada corporations. These “control share” laws provide generally
that any person that acquires a “controlling interest” in certain Nevada corporations may be denied certain voting rights,
unless a majority of the disinterested stockholders of the corporation elects to restore such voting rights. These statutes provide that
a person acquires a “controlling interest” whenever a person acquires shares of a subject corporation that, but for the application
of these provisions of the Nevada Revised Statutes, would enable that person to exercise (1) one-fifth or more, but less than one-third,
(2) one-third or more, but less than a majority or (3) a majority or more, of all of the voting power of the corporation in the election
of directors. Once an acquirer crosses one of these thresholds, shares which it acquired in the transaction taking it over the threshold
and within the 90 days immediately preceding the date when the acquiring person acquired or offered to acquire a controlling interest
become “control shares” to which the voting restrictions described above apply. Our Articles of Incorporation and Bylaws
currently contain no provisions relating to these statutes, and unless our Articles of Incorporation or Bylaws in effect on the tenth
day after the acquisition of a controlling interest were to provide otherwise, these laws would apply to us if we were to (i) have 200
or more stockholders of record (at least 100 of which have addresses in the State of Nevada appearing on our stock ledger) and (ii) do
business in the State of Nevada directly or through an affiliated corporation. As of February 12, 2024, we had 93 record stockholders
and did not have 100 stockholders of record with Nevada addresses appearing on our stock ledger. If these laws were to apply to us, they
might discourage companies or persons interested in acquiring a significant interest in or control of our Company, regardless of whether
such acquisition may be in the interest of our stockholders.
Combination
with Interested Stockholders Statutes. Nevada’s “combinations with interested stockholders” statutes prohibit certain
business “combinations” between certain Nevada corporations and any person deemed to be an “interested stockholder”
for two years after such person first becomes an “interested stockholder” unless (i) the corporation’s Board of Directors
approves the combination (or the transaction by which such person becomes an “interested stockholder”) in advance, or (ii)
the combination is approved by the Board of Directors and sixty percent of the corporation’s voting power not beneficially owned
by the interested stockholder, its affiliates and associates. Furthermore, in the absence of prior approval, certain restrictions may
apply even after such two-year period. For purposes of these statutes, an “interested stockholder” is any person who is (x)
the beneficial owner, directly or indirectly, of ten percent or more of the voting power of the outstanding voting shares of the corporation,
or (y) an affiliate or associate of the corporation and at any time within the two previous years was the beneficial owner, directly
or indirectly, of ten percent or more of the voting power of the then outstanding shares of the corporation. The definition of the term
“combination” is sufficiently broad to cover most significant transactions between a corporation and an “interested
stockholder”. Subject to certain timing requirements set forth in the statutes, a corporation may elect not to be governed by these
statutes. We have not included any such provision in our Articles of Incorporation.
The
effect of these statutes may be to potentially discourage parties interested in taking control of our Company from doing so if it cannot
obtain the approval of our Board of Directors.
Articles
of Incorporation and Bylaws. Provisions of our Articles of Incorporation and Bylaws may delay or discourage transactions involving
an actual or potential change of control or change in our management, including transactions in which stockholders might otherwise receive
a premium for their shares, or transactions that our stockholders might otherwise deem to be in their best interests. Therefore, these
provisions could adversely affect the price of our common stock. Among other things, these provisions include:
| ● | the
authorization of 10,000,000 shares of “blank check” preferred stock, the rights,
preferences and privileges of which may be established and shares of which may be issued
by our Board of Directors at its discretion from time to time and without stockholder approval; |
| ● | limiting
the removal of directors by the stockholders; |
| ● | allowing
for the creation of a staggered Board of Directors; |
| ● | eliminating
the ability of stockholders to call a special meeting of stockholders; and |
| ● | establishing
advance notice requirements for nominations for election to the Board of Directors or for
proposing matters that can be acted upon at stockholder meetings. |
DESCRIPTION
OF WARRANTS
The
following description, together with the additional information we may include in any applicable prospectus supplement, summarizes the
material terms and provisions of the warrants that we may offer under this prospectus and any related warrant agreement and warrant certificate.
While the terms summarized below will apply generally to any warrants that we may offer, we will describe the specific terms of any series
of warrants in more detail in the applicable prospectus supplement. If we indicate in the prospectus supplement, the terms of any warrants
offered under that prospectus supplement may differ from the terms described below. Specific warrant agreements will contain additional
important terms and provisions as follows and will be filed, along with a form of warrant certificate, as exhibits to the registration
statement of which this prospectus is a part, or will be incorporated by reference from reports that we file with the SEC:
| ● | 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; |
| ● | if
applicable, the exercise price for shares of our common stock or preferred stock and the
number of shares of common stock or preferred stock to be received upon exercise of the warrants; |
| ● | in
the case of warrants to purchase debt securities, the principal amount of debt securities
purchasable upon exercise of one warrant and the price at, and currency in which, this principal
amount of debt securities may be purchased upon such exercise; |
| ● | the
date on which the right to exercise the warrants will begin and the date on which that right
will expire or, if warrant holders may not continuously exercise the warrants throughout
that period, the specific date or dates on which the warrant holders may exercise the warrants; |
| ● | 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; |
| ● | 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 the common stock issuable upon exercise of the
warrants on any securities exchange; |
| ● | if
applicable, the date from and after which the warrants and the common stock or preferred
stock 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; |
| ● | the
redemption or call provisions, if any; |
| ● | 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. |
Before
exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise,
including:
| ● | in
the case of warrants to purchase debt securities, the right to receive payments of principal
of, or premium, if any, or interest on the debt securities purchasable upon exercise or to
enforce covenants in the applicable indenture; or |
| ● | in
the case of warrants to purchase common stock or preferred stock, the right to receive dividends,
if any, or, payments upon our liquidation, dissolution or winding up or to exercise voting
rights, if any. |
Each
warrant will entitle the holder of the warrant to purchase for cash, or, if applicable, via net exercise, an amount of securities at
the exercise price set forth in the applicable prospectus supplement. Holders may exercise warrants at any time up to the close of business
on the expiration date set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised
warrants will be void.
The
transfer agent and registrar, if any, for any warrants will be set forth in the applicable prospectus supplement.
DESCRIPTION
OF DEBT SECURITIES
The
following description, together with the additional information we include in any applicable prospectus supplement, summarizes the material
terms and provisions of any debt securities that we may offer under this prospectus. While the terms we have summarized below will apply
generally to any future debt securities we offer, we will describe the particular terms of any debt securities that we may offer in more
detail in the applicable prospectus supplement. The terms of any debt securities we may offer under a prospectus supplement may differ
from the terms described below. For any debt securities that we offer, an indenture (and any relevant supplemental indenture), if required,
will contain additional important terms and provisions, the form of which we filed as an exhibit to the registration statement of which
this prospectus is a part and is incorporated herein by reference. We will file any definitive indenture as an exhibit to reports that
we file with the SEC and incorporate by reference in this prospectus and the applicable prospectus supplement. Any indenture would be
qualified under the Trust Indenture Act of 1939, as amended.
With
respect to any debt securities that we issue, we will describe in each prospectus supplement the following terms relating to a series
of debt securities:
| ● | the
principal amount being offered, and if a series, the total amount authorized and the total
amount outstanding; |
| ● | any
limit on the amount that may be issued; |
| ● | whether
or not we will issue the series of debt securities in global form, and if so, the terms and
who the depository will be; |
| ● | the
principal amount due at maturity; |
| ● | whether
and under what circumstances, if any, we will pay additional amounts on any debt securities
held by a person who is not a United States person for tax purposes, and whether we can redeem
the debt securities if we have to pay such additional amounts; |
| ● | the
annual interest rate, which may be fixed or variable, or the method for determining the rate
and the date interest will begin to accrue, the dates interest will be payable and the regular
record dates for interest payment dates or the method for determining such dates; |
| ● | whether
or not the debt securities will be convertible into shares of our common stock or our preferred
stock and, if so, the terms of such conversion; |
| ● | whether
or not the debt securities will be secured or unsecured by some or all of our assets, and
the terms of any secured debt; |
| ● | the
terms of the subordination of any series of subordinated debt; |
| ● | the
place where payments will be payable; |
| ● | restrictions
on transfer, sale or other assignment, if any; |
| ● | our
right, if any, to defer payment or interest and the maximum length of any such deferral period; |
| ● | the
date, if any, after which and the conditions upon which, and the price at which, we may,
at our option, redeem the series of debt securities pursuant to any optional or provisional
redemption provisions and the terms of those redemption provisions; |
| ● | the
date, if any, on which, and the price at which we are obligated, pursuant to any mandatory
sinking fund or analogous fund provisions or otherwise, to redeem, or at the holder’s
option to purchase, the series of debt securities and the currency or currency unit in which
the debt securities are payable; |
| ● | whether
the indenture will restrict our ability to pay dividends, or will require us to maintain
any asset ratios or reserves; |
| ● | whether
we will be restricted from incurring any additional indebtedness, issuing additional securities,
or entering into a merger, consolidation or sale of our business; |
| ● | information
describing any book-entry features; |
| ● | any
provisions for payment of additional amounts for taxes; |
| ● | whether
the debt securities are to be offered at a price such that they will be deemed to be offered
at an “original issue discount” as defined in paragraph (a) of Section 1273 of
the Internal Revenue Code of 1986, as amended; |
| ● | the
denominations in which we will issue the series of debt securities, if other than denominations
of $1,000 and any integral multiple thereof; |
| ● | whether
we and/or the indenture trustee may change an indenture without the consent of any holders; |
| ● | the
form of debt security and how it may be exchanged and transferred; |
| ● | description
of the indenture trustee and paying agent, and the method of payments; and |
| ● | any
other specified terms, preferences, rights or limitations of, or restrictions on, the debt
securities and any terms that may be required by us or advisable under applicable laws or
regulations. |
We
summarize below the material terms of the form of indenture, if required, or indicate which material terms will be described in the applicable
prospectus supplement. The indenture:
| ● | does
not limit the amount of debt securities that we may issue; |
| ● | allows
us to issue debt securities in one or more series; |
| ● | does
not require us to issue all of the debt securities of a series at the same time; |
| ● | allows
us to reopen a series to issue additional debt securities without the consent of the holders
of the debt securities of such series; and |
| ● | provides
that the debt securities may be secured or unsecured, as may be set forth in the applicable
prospectus supplement. |
DESCRIPTION
OF THE UNITS
We
may issue units comprised of shares of common stock, shares of preferred stock, debt securities, warrants, or rights in any combination
and in one or more series. Each unit will be issued so that the holder of the unit is also the holder of each security included in the
unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under
which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any time or
at any time before a specified date.
We
may choose to evidence each series of units by unit certificates that we would issue under separate agreements. If we choose to evidence
the units by unit certificates, we will enter into unit agreements with a unit agent and will indicate the name and address of the unit
agent in the applicable prospectus supplement related to the particular series of units. We will file as exhibits to the registration
statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of unit
agreement, unit certificate, as may be applicable, and any supplemental agreements that describe the terms of the units we are offering
before the issuance of the units.
DESCRIPTION
OF THE RIGHTS
The
following is a general description of the terms of the rights we may issue from time to time unless we provide otherwise in the applicable
prospectus supplement. Particular terms of any rights we offer will be described in the prospectus supplement relating to such rights.
General
We
may issue rights to purchase common stock, preferred stock, debt securities or units. Rights may be issued independently or together
with other securities and may or may not be transferable by the person purchasing or receiving the rights. In connection with any rights
offering to our stockholders, we may enter into a standby underwriting, backstop or other arrangement with one or more underwriters or
other persons pursuant to which such underwriters or other persons would purchase any offered securities remaining unsubscribed after
such rights offering. In connection with a rights offering to our stockholders, we would distribute certificates evidencing the rights
and a prospectus supplement to our stockholders on or about the record date that we set for receiving rights in such rights offering.
The
applicable prospectus supplement will describe the following terms of any rights we may issue, including some or all of the following:
| ● | the
title and aggregate number of the rights; |
| ● | the
subscription price or a formula for the determination of the subscription price for the rights
and the currency or currencies in which the subscription price may be payable; |
| ● | if
applicable, the designation and terms of the securities with which the rights are issued
and the number of rights issued with each such security or each principal amount of such
security; |
| ● | the
number or a formula for the determination of the number of the rights issued to each stockholder; |
| ● | the
extent to which the rights are transferable; |
| ● | in
the case of rights to purchase debt securities, the principal amount of debt securities purchasable
upon exercise of one right; |
| ● | in
the case of rights to purchase common stock or preferred stock, the type of stock and number
of shares of stock purchasable upon exercise of one right; |
| ● | in
the case of rights to purchase units, the type and number of securities comprising the units,
and the number of units purchasable upon exercise of one right; |
| ● | the
date on which the right to exercise the rights will commence, and the date on which the rights
will expire (subject to any extension); |
| ● | if
applicable, the minimum or maximum amount of the rights that may be exercised at any one
time; |
| ● | the
extent to which such rights include an over-subscription privilege with respect to unsubscribed
securities; |
| ● | if
applicable, the procedures for adjusting the subscription price and number of shares of common
stock or preferred stock purchasable upon the exercise of each right upon the occurrence
of certain events, including stock splits, reverse stock splits, combinations, subdivisions
or reclassifications of common stock or preferred stock; |
| ● | the
effect on the rights of any merger, consolidation, sale or other disposition of our business; |
| ● | the
terms of any rights to redeem or call the rights; |
| ● | information
with respect to book-entry procedures, if any; |
| ● | the
terms of the securities issuable upon exercise of the rights; |
| ● | if
applicable, the material terms of any standby underwriting, backstop or other purchase arrangement
that we may enter into in connection with the rights offering; |
| ● | if
applicable, a discussion of material U.S. federal income tax considerations; and |
| ● | any
other terms of the rights, including terms, procedures and limitations relating to the exchange
and exercise of the rights. |
We
will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from reports
that we file with the SEC, the form of rights agreement and rights certificate that describe the terms of the rights we are offering
before the issuance of rights.
Exercise
of Rights
Each
right will entitle the holder to purchase for cash or other consideration such shares of stock or principal amount of securities at the
subscription price as shall in each case be set forth in, or be determinable as set forth in, the prospectus supplement relating to the
rights offered thereby. Rights may be exercised as set forth in the applicable prospectus supplement beginning on the date specified
therein and continuing until the close of business on the expiration date set forth in the prospectus supplement relating to the rights
offered thereby. After the close of business on the expiration date, unexercised rights will become void.
Upon
receipt of payment and a rights certificate properly completed and duly executed at the corporate trust office of the subscription agent
or any other office indicated in the prospectus supplement, we will, as soon as practicable, forward the securities purchased upon such
exercise. If less than all of the rights represented by such subscription certificate are exercised, a new subscription certificate will
be issued for the remaining rights. If we so indicate in the applicable prospectus supplement, holders of the rights may surrender securities
as all or part of the exercise price for rights.
We
may determine to offer any unsubscribed offered securities directly to stockholders, to persons other than stockholders, to or through
agents, underwriters or dealers or through a combination of such methods, including pursuant to standby underwriting, backstop or other
arrangements, as described in the applicable prospectus supplement.
Prior
to exercising their rights, holders of rights will not have any of the rights of holders of the securities purchasable upon subscription,
including, in the case of rights to purchase common stock or preferred stock, the right to receive dividends, if any, or payments upon
our liquidation, dissolution or winding up or to exercise any voting rights or, in the case of rights to purchase debt securities, the
right to receive principal, premium, if any, or interest payments, on the debt securities purchasable upon exercise or to enforce covenants
in the applicable indenture.
LEGAL
MATTERS
The
validity of the securities being offered hereby will be passed upon by Wyrick Robbins Yates & Ponton LLP, Raleigh, North Carolina.
EXPERTS
The
financial statements of Citius Pharmaceuticals, Inc. appearing in our Annual Report on Form 10-K for the fiscal year ended September
30, 2023 have been included herein by reference in reliance on the report of Wolf & Company, P.C., independent registered public
accounting firm, given on the authority of such firm as experts in accounting and auditing.
WHERE
YOU CAN FIND ADDITIONAL INFORMATION
We
are subject to the reporting requirements of the Exchange Act and file annual, quarterly and current reports, proxy statements and other
information with the SEC. You can read our SEC filings, including the registration statement of which this prospectus is a part, over
the Internet at the SEC’s website at http://www.sec.gov. We also maintain a website at http://www.citiuspharma.com,
at which you may access these materials free of charge as soon as reasonably practicable after they are electronically filed with, or
furnished to, the SEC. The information contained in, or that can be accessed through, our website is not part of this prospectus. You
may also request a copy of these filings, at no cost, by writing or telephoning us at: 11 Commerce Drive, First Floor, Cranford, New
Jersey 07016, (908) 967-6677.
INCORPORATION
OF DOCUMENTS BY REFERENCE
The
SEC allows us to “incorporate by reference” information that we file with them. Incorporation by reference allows us to disclose
important information to you by referring you to those other documents. The information incorporated by reference is an important part
of this prospectus and any applicable accompanying prospectus, and information that we file later with the SEC will automatically update
and supersede this information. We filed a registration statement on Form S-3 under the Securities Act with the SEC with respect
to the securities being offered pursuant to this prospectus and any applicable accompanying prospectus. This prospectus omits certain
information contained in the registration statement, as permitted by the SEC. You should refer to the registration statement, including
the exhibits, for further information about us and the securities being offered pursuant to this prospectus and any applicable accompanying
prospectus. Statements in this prospectus and any applicable accompanying prospectus regarding the provisions of certain documents filed
with, or incorporated by reference in, the registration statement are not necessarily complete, and reference is made to the actual documents
for complete information. Copies of all or any part of the registration statement, including the documents incorporated in therein by
reference or the exhibits, may be obtained upon payment of the prescribed rates at the offices of the SEC listed above in “Where
You Can Find Additional Information.” The documents we are incorporating by reference into this prospectus are:
| ● | the
description of our common stock contained in our Registration Statement on Form 8-A, filed
on July 28, 2017; |
| ● | our
Annual Report on Form 10-K for the fiscal year ended September 30, 2023, filed with the SEC
pursuant to Section 13 of the Exchange Act on December 29, 2023; |
| ● | our
Quarterly Report on Form 10-Q for the quarter ended December 31, 2023, filed with the SEC
pursuant to Section 13 of the Exchange Act on February 14, 2024; |
| ● | our
definitive proxy statement on Schedule 14A for the annual meeting of stockholders to be held
on March 12, 2024, filed with the SEC pursuant to Section 14 of the Exchange Act on January
26, 2024. |
In
addition, all documents subsequently filed by us pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act before the date any
offering is terminated or completed are deemed to be incorporated by reference into, and to be a part of, this prospectus, provided that
that we are not incorporating by reference any information furnished to, but not filed with, the SEC.
Any
statement contained in this prospectus and any applicable accompanying prospectus or in a document incorporated or deemed to be incorporated
by reference into this prospectus and any applicable accompanying prospectus will be deemed to be modified or superseded for purposes
of this prospectus and any applicable accompanying prospectus to the extent that a statement contained in this prospectus and any applicable
accompanying prospectus or any other subsequently filed document that is deemed to be incorporated by reference into this prospectus
and any applicable accompanying prospectus modifies or supersedes the statement. Any statement so modified or superseded will not be
deemed, except as so modified or superseded, to constitute a part of this prospectus and any applicable accompanying prospectus.
We
will furnish without charge to you, on written or oral request, a copy of any or all of the documents incorporated by reference in the
registration statement and this prospectus, including exhibits to these documents. You should direct any requests for documents to Citius
Pharmaceuticals, Inc., Attention: Secretary, 11 Commerce Drive, 1st Floor, Cranford, New Jersey 07016, (908) 967-6677.
You
should rely only on information contained in, or incorporated by reference into, this prospectus and any applicable accompanying prospectus.
We have not authorized anyone to provide you with information different from that contained in this prospectus and any applicable accompanying
prospectus or incorporated by reference in this prospectus and any applicable accompanying prospectus. We are not making offers to sell
the securities in any jurisdiction in which such an offer or solicitation is not authorized or in which the person making such offer
or solicitation is not qualified to do so or to anyone to whom it is unlawful to make such offer or solicitation.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth all costs and expenses paid or payable by us in connection with the sale of the common stock being registered.
SEC registration fee | |
$ | 36,900 | |
Legal fees and expenses | |
$ | * | |
Accounting fees and expenses | |
$ | * | |
Printing expenses | |
$ | * | |
Miscellaneous | |
$ | * | |
Total | |
$ | * | |
* | These
fees and expenses depend on the securities offered and the number of issuances, and accordingly cannot be estimated as of the date of
this registration statement. |
Item
15. Indemnification of Directors and Officers.
Neither
our Articles of Incorporation nor Bylaws prevent us from indemnifying our officers, directors and agents to the extent permitted under
the Nevada Revised Statute (“NRS”). NRS Section 78.751 provides that a corporation shall indemnify any director, officer,
employee or agent of a corporation against expenses, including attorneys’ fees, actually and reasonably incurred by him or her
in connection with any the defense to the extent that a director, officer, employee or agent of a corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred to in Section 78.751, or in defense of any claim, issue
or matter therein.
NRS
78.7502(1) provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, except an action by or in
the right of the corporation, by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses, including attorneys' fees, judgments, fines and amounts paid in settlement
actually and reasonably incurred by him or her in connection with the action, suit or proceeding if he or she: (a) is not liable pursuant
to NRS 78.138; or (b) acted in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was
unlawful.
NRS
Section 78.7502(2) provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason
of the fact that he or she is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise
against expenses, including amounts paid in settlement and attorneys' fees actually and reasonably incurred by him or her in connection
with the defense or settlement of the action or suit if he or she: (a) is not liable pursuant to NRS 78.138; or (b) acted in good faith
and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation. Indemnification
may not be made for any claim, issue or matter as to which such a person has been adjudged by a court of competent jurisdiction, after
exhaustion of all appeals therefrom, to be liable to the corporation or for amounts paid in settlement to the corporation, unless and
only to the extent that the court in which the action or suit was brought or other court of competent jurisdiction determines upon application
that in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such expenses as the
court deems proper.
NRS
Section 78.747 provides that, except as otherwise specifically provided by statute or agreement, no director or officer of a corporation
is individually liable for a debt or liability of the corporation, unless the director or officer acts as the alter ego of the corporation.
The court as a matter of law must determine the question of whether a director or officer acts as the alter ego of a corporation.
Our
Bylaws provide that we will, to the maximum extent and in the manner permitted by the Nevada Revised Statutes (as such law may from time
to time be amended, but, in the case of any such amendment, only to the extent that such amendment permits us to provide broader indemnification
rights), indemnify each of our directors and officers against expenses, judgments, fines, penalties, ERISA excise taxes, settlements,
loss, liability, and other amounts actually and reasonably incurred in connection with any proceeding, arising by reason of such person’s
Official Capacity (as defined below) or anything done or not done in such person’s Official Capacity. “Official Capacity”
means the person’s corporate status as an officer and/or director and any other fiduciary capacity in which the person serves our
Company, our subsidiaries or affiliates, and any other entity which the person serves in such capacity at the request of any of our board
of directors or any committee of our board of directors, chief executive officer, chairman of the board of directors, or president. “Official
Capacity” also refers to all actions which the person takes or does not take while serving in such capacity.
Our
Bylaws also provide that we may purchase and maintain insurance on behalf of any person who is or was a director, officer, manager, member,
partner, trustee, employee or other agent of our Company, or is or was serving at our request as a director, officer, employee or agent
of another corporation, limited liability company, partnership, joint venture, trust or other enterprise against any liability asserted
against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or
not we would have the power to indemnify such person against such liability under the provisions of the Nevada Revised Statutes. We have
purchased a policy of directors’ and officers’ liability insurance that insures our directors and officers.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers or persons
controlling our Company pursuant to the foregoing provisions, we have been informed that, in the opinion of the SEC, such indemnification
is against public policy as expressed in the Securities Act and is therefore unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by us of expenses incurred or paid by a director, officer or controlling person of our
Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection
with the securities being registered, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such indemnification by us is against public policy as expressed hereby
in the Securities Act and we will be governed by the final adjudication of such issue.
Item
16. Exhibits.
Exhibit Number |
|
Description of Document |
|
Registrant’s Form |
|
Dated |
|
Exhibit Number |
|
Filed Herewith |
1.1* |
|
Form of Underwriting Agreement. |
|
-- |
|
-- |
|
-- |
|
|
2.1** |
|
Agreement and Plan of Merger, dated as of October 23, 2023, by and among Citius Pharmaceuticals, Inc., Citius Oncology, Inc., TenX Keane Acquisition and TenX Merger Sub Inc. |
|
8-K |
|
10/24/2023 |
|
2.1 |
|
|
3.1 |
|
Amended and Restated Articles of Incorporation of Citius Pharmaceuticals, Inc. |
|
8-K |
|
9/18/2014 |
|
3.1 |
|
|
3.2 |
|
Certificate of Amendment to the Amended and Restated Articles of Incorporation of Citius Pharmaceuticals, Inc., effective September 16, 2016. |
|
8-K |
|
9/21/2016 |
|
3.1 |
|
|
3.3 |
|
Certificate of Amendment to the Amended and Restated Articles of Incorporation of Citius Pharmaceuticals, Inc., effective June 9, 2017. |
|
8-K |
|
6/8/2017 |
|
3.1 |
|
|
3.4 |
|
Certificate of Amendment to the Amended and Restated Articles of Incorporation of Citius Pharmaceuticals, Inc., dated June 21, 2021. |
|
8-K/A |
|
6/22/2021 |
|
3.1 |
|
|
3.5 |
|
Amended and Restated Bylaws of Citius Pharmaceuticals, Inc. |
|
8-K |
|
2/9/2018 |
|
3.1 |
|
|
4.1 |
|
Form of Common Stock Purchase Warrant, dated August 13, 2018, as amended August 8, 2023. |
|
10-K |
|
12/29/2023 |
|
4.1 |
|
|
4.2 |
|
Form of Pre-Funded Common Stock Purchase Warrant, dated August 13, 2018. |
|
8-K |
|
8/13/2018 |
|
4.2 |
|
|
4.3 |
|
Form of Underwriter’s Common Stock Purchase Warrant, dated August 13, 2018, as amended August 8, 2023. |
|
10-K |
|
12/29/2023 |
|
4.3 |
|
|
4.4 |
|
Form of Investor Warrant issued April 3, 2019. |
|
8-K |
|
4/03/2019 |
|
4.1 |
|
|
4.5 |
|
Form of Placement Agent Warrant issued April 3, 2019. |
|
8-K |
|
4/03/2019 |
|
4.2 |
|
|
4.6 |
|
Form of Common Stock Purchase Warrant issued September 27, 2019. |
|
8-K |
|
9/27/2019 |
|
4.1 |
|
|
4.7 |
|
Form of Underwriters Common Stock Purchase Warrant issued September 27, 2019. |
|
8-K |
|
9/27/2019 |
|
4.3 |
|
|
4.8 |
|
Form of Investor Warrant issued on February 19, 2020. |
|
8-K |
|
2/19/2020 |
|
4.1 |
|
|
4.9 |
|
Form of Placement Agent Warrant issued on February 19, 2020. |
|
8-K |
|
2/19/2020 |
|
4.2 |
|
|
4.10 |
|
Form of Investor Warrant issued May 18, 2020. |
|
8-K |
|
5/18/2020 |
|
4.1 |
|
|
4.11 |
|
Form of Placement Agent Warrant issued May 18, 2020. |
|
8-K |
|
5/18/2020 |
|
4.2 |
|
|
4.12 |
|
Form
of Underwriter Warrant issued August 10, 2020. |
|
8-K |
|
8/10/2020 |
|
4.1 |
|
|
4.13 |
|
Form of Investor Warrant issued January 27, 2021. |
|
8-K |
|
1/27/2021 |
|
4.1 |
|
|
4.14 |
|
Form of Placement Agent Warrant issued January 27, 2021. |
|
8-K |
|
1/27/2021 |
|
4.2 |
|
|
4.15 |
|
Form of Registration Rights Agreement, dated January 24, 2021, by and among Citius Pharmaceuticals, Inc. and the purchasers signatory thereto. |
|
8-K |
|
1/27/2021 |
|
4.3 |
|
|
4.16 |
|
Form of Investor Warrant issued February 19, 2021. |
|
8-K |
|
2/19/2021 |
|
4.1 |
|
|
4.17 |
|
Form of Placement Agent Warrant issued February 19, 2021. |
|
8-K |
|
2/19/2021 |
|
4.2 |
|
|
4.18 |
|
Description of Common Stock. |
|
10-K |
|
12/22/2022 |
|
4.25 |
|
|
4.19 |
|
Form of Warrant issued May 8, 2023. |
|
8-K |
|
5/08/2023 |
|
4.1 |
|
|
4.20 |
|
Form of Placement Agent Warrant issued May 8, 2023. |
|
8-K |
|
5/08/2023 |
|
4.2 |
|
|
4.21* |
|
Form of Certificate of Amendment to Amended and Restated Articles of Incorporation of Citius Pharmaceuticals, Inc. |
|
-- |
|
-- |
|
-- |
|
|
4.22 |
|
Form of Indenture. |
|
|
|
|
|
|
|
X |
4.23* |
|
Form of Note. |
|
-- |
|
-- |
|
-- |
|
|
4.24* |
|
Form of Common Stock Warrant Agreement and Warrant Certificate. |
|
-- |
|
-- |
|
-- |
|
|
4.25* |
|
Form of Preferred Stock Agreement and Warrant Certificate. |
|
-- |
|
-- |
|
-- |
|
|
4.26* |
|
Form of Debt Securities Warrant Agreement and Warrant Certificate. |
|
-- |
|
-- |
|
-- |
|
|
4.27* |
|
Form of Unit Agreement and Unit Certificate. |
|
-- |
|
-- |
|
-- |
|
|
* |
To be filed, if necessary, by amendment to the Registration Statement or as an exhibit to a report filed under the Exchange Act and incorporated by reference herein. |
** |
Portions of this exhibit have been omitted pursuant to Item 601(b)10 of Regulation S-K or certain of the exhibits and schedules to this exhibit have been omitted in accordance with Regulation S-K Item 601(b)(2) or 601(a)(5), as applicable. The Registrant agrees to furnish supplementally an unredacted copy such exhibit, including any omitted exhibits and schedules, to the SEC upon its request. |
+ |
To be filed separately pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, as amended. |
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; |
| (ii) | To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the SEC 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; |
| (iii) | To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement; |
provided,
however, that paragraphs (a)(1)(i), (ii) and (iii) above do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained
in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
| (2) | That,
for the purpose of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof. |
| (3) | To
remove from registration by means of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the offering. |
| (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 Securities Act of 1933 shall be deemed to be part of and included in
the registration statement as of the earlier of the date such form of prospectus is first
used after effectiveness or the date of the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date shall be deemed to be a new
effective date of the registration statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement will, as
to a purchaser with a time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or prospectus that was part
of the registration statement or made in any such document immediately prior to such effective
date. |
| (6) | That,
for the purpose of determining liability of the registrant under the Securities Act
of 1933 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 Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. |
| (h) | Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been advised that in the opinion
of the 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. |
| (i) | The
undersigned registrant hereby undertakes that: |
| (1) | For
purposes of determining any liability under the Securities Act of 1933, the information
omitted from the form of prospectus filed as part of this Registration Statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed
to be part of this registration statement as of the time it was declared effective; and |
| (2) | For
the purpose of determining any liability under the Securities Act of 1933, each post-effective
amendment that contains a form of prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof. |
| (j) | 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 (“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 on Form S-3 to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Cranford, State of New Jersey, on February 23, 2024.
|
CITIUS PHARMACEUTICALS,
INC. |
|
|
|
|
By: |
/s/
Leonard Mazur |
|
|
Leonard Mazur |
|
|
Chairman and Chief Executive
Officer |
|
|
(Principal Executive Officer) |
POWER
OF ATTORNEY
KNOW
ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Leonard Mazur and Jaime Bartushak as his
or her true and lawful attorneys-in-fact and agents, each with the full power of substitution, for him of her and in his or her name,
place or stead, in any and all capacities, to sign any and all amendments to this registration statement (including post-effective amendments),
and any subsequent registration statement filed by the registrant pursuant to Rule 462(b) of the Securities Act of 1933,
as amended, which relates to this registration statement, and to file the same, with exhibits thereto and other documents in connection
therewith, with the SEC, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their or his or her
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities
and on the dates indicated.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/ Leonard
Mazur |
|
Chairman
and Chief Executive Officer |
|
February
23, 2024 |
Leonard Mazur |
|
(Principal
Executive Officer) |
|
|
|
|
|
|
|
/s/
Jaime Bartushak |
|
Chief
Financial Officer and Chief Accounting Officer |
|
February 23, 2024 |
Jaime Bartushak |
|
(Principal
Financial Officer and Principal Accounting Officer) |
|
|
|
|
|
|
|
/s/ Myron
Holubiak |
|
Executive
Vice Chairman and Director |
|
February
23, 2024 |
Myron Holubiak |
|
|
|
|
|
|
|
|
|
/s/ Dr. Eugene
Holuka |
|
Director |
|
February
23, 2024 |
Dr. Eugene Holuka |
|
|
|
|
|
|
|
|
|
/s/
Suren Dutia |
|
Director |
|
February
23, 2024 |
Suren Dutia |
|
|
|
|
|
|
|
|
|
/s/
Dennis M. McGrath |
|
Director |
|
February 23, 2024 |
Dennis M. McGrath |
|
|
|
|
|
|
|
|
|
/s/ Carol
Webb |
|
Director |
|
February
23, 2024 |
Carol Webb |
|
|
|
|
II-7
Exhibit
4.22
CITIUS
PHARMACEUTICALS, INC.
and
, as
Trustee
INDENTURE
Dated
as of , 202___
TABLE
OF CONTENTS
|
|
PAGE |
ARTICLE 1 |
DEFINITIONS AND INCORPORATION BY REFERENCE |
1 |
|
|
|
1.1. |
DEFINITIONS |
1 |
|
|
|
1.2. |
RESERVED |
4 |
|
|
|
1.3. |
INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT |
4 |
|
|
|
1.4. |
RULES OF CONSTRUCTION |
4 |
|
|
|
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 |
10 |
|
|
|
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 |
11 |
|
|
|
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 |
14 |
|
|
|
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 |
15 |
|
|
|
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 |
|
|
|
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 |
18 |
|
|
|
6.5. |
CONTROL BY MAJORITY |
18 |
|
|
|
6.6. |
LIMITATION ON SUITS |
18 |
|
|
|
6.7. |
RIGHTS OF HOLDERS TO RECEIVE PAYMENT |
19 |
|
|
|
6.8. |
COLLECTION SUIT BY TRUSTEE |
19 |
|
|
|
6.9. |
TRUSTEE MAY FILE PROOFS OF CLAIM |
19 |
|
|
|
6.10. |
PRIORITIES |
19 |
|
|
|
6.11. |
UNDERTAKING FOR COSTS |
20 |
|
|
|
ARTICLE 7 |
TRUSTEE |
20 |
|
|
|
7.1. |
DUTIES OF TRUSTEE |
20 |
|
|
|
7.2. |
RIGHTS OF TRUSTEE |
21 |
|
|
|
7.3. |
INDIVIDUAL RIGHTS OF TRUSTEE |
21 |
|
|
|
7.4. |
TRUSTEE’S DISCLAIMER |
21 |
7.5. |
NOTICE OF DEFAULT |
22 |
|
|
|
7.6. |
REPORTS BY TRUSTEE TO HOLDERS |
22 |
|
|
|
7.7. |
COMPENSATION AND INDEMNITY |
22 |
|
|
|
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 |
24 |
|
|
|
ARTICLE 8 |
AMENDMENTS, SUPPLEMENTS AND WAIVERS |
24 |
|
|
|
8.1. |
WITHOUT CONSENT OF HOLDERS |
24 |
|
|
|
8.2. |
WITH CONSENT OF HOLDERS |
25 |
|
|
|
8.3. |
COMPLIANCE WITH TRUST INDENTURE ACT |
25 |
|
|
|
8.4. |
REVOCATION AND EFFECT OF CONSENTS |
25 |
|
|
|
8.5. |
NOTATION ON OR EXCHANGE OF SECURITIES |
26 |
|
|
|
8.6. |
TRUSTEE TO SIGN AMENDMENTS, ETC. |
26 |
|
|
|
ARTICLE 9 |
DISCHARGE OF INDENTURE; DEFEASANCE |
26 |
|
|
|
9.1. |
DISCHARGE OF INDENTURE |
26 |
|
|
|
9.2. |
LEGAL DEFEASANCE |
27 |
|
|
|
9.3. |
COVENANT DEFEASANCE |
27 |
|
|
|
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 |
|
|
|
9.6. |
REINSTATEMENT |
29 |
|
|
|
9.7. |
MONEYS HELD BY PAYING AGENT |
29 |
|
|
|
9.8. |
MONEYS HELD BY TRUSTEE |
29 |
|
|
|
ARTICLE 10 |
MISCELLANEOUS |
30 |
|
|
|
10.1. |
TRUST INDENTURE ACT CONTROLS |
30 |
|
|
|
10.2. |
NOTICES |
30 |
|
|
|
10.3. |
COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS |
31 |
|
|
|
10.4. |
CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT |
31 |
|
|
|
10.5. |
STATEMENT REQUIRED IN CERTIFICATE AND OPINION |
31 |
10.6. |
RULES BY TRUSTEE AND AGENTS |
31 |
|
|
|
10.7. |
BUSINESS DAYS; LEGAL HOLIDAYS; PLACE OF PAYMENT |
31 |
|
|
|
10.8. |
GOVERNING LAW |
32 |
|
|
|
10.9. |
NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS |
32 |
|
|
|
10.10. |
NO RECOURSE AGAINST OTHERS |
32 |
|
|
|
10.11. |
SUCCESSORS |
32 |
|
|
|
10.12. |
MULTIPLE COUNTERPARTS |
32 |
|
|
|
10.13. |
TABLE OF CONTENTS, HEADINGS, ETC. |
32 |
|
|
|
10.14. |
SEVERABILITY |
32 |
|
|
|
10.15. |
SECURITIES IN A FOREIGN CURRENCY OR IN EUROS |
33 |
|
|
|
10.16. |
JUDGMENT CURRENCY |
33 |
INDENTURE,
dated as of
, 202__, by
and between Citius Pharmaceuticals, Inc., a Nevada 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.
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, if any, 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:
(A) commences
a voluntary case,
(B) consents
to the entry of an order for relief against it in an involuntary case,
(C) consents
to the appointment of a Custodian of it or for all or substantially all of its property,
(D) makes
a general assignment for the benefit of its creditors, or
(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:
(A) is for
relief against the Company or any Significant Subsidiary in an involuntary case;
(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
(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;
(4) the Trustee otherwise
becomes incapable of acting; or
(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:
Citius Pharmaceuticals, Inc.
11 Commerce Drive, First Floor
Cranford, New Jersey 07016
Attention: Chief Executive Officer
Copy to:
Wyrick Robbins Yates & Ponton
LLP
4101 Lake Boone Trail, Suite 300
Raleigh, NC 27607
Fax: (919) 781-4000
Attention: Alexander M. Donaldson,
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.
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34
Exhibit 5.1
February 23, 2024
Board of Directors
Citius Pharmaceuticals, Inc.
11 Commerce Drive, First Floor
Cranford, New Jersey 07016
| Re: | Shelf Registration Statement
on Form S-3 |
Ladies and Gentlemen:
We have acted as counsel to Citius Pharmaceuticals, Inc., a Nevada
corporation (the “Company”), in connection with its registration statement on Form S-3 (the “Registration Statement”)
filed on even date herewith with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933,
as amended (the “Act”). The Registration Statement relates to the proposed issuance and sale from time to time of up to $250,000,000
of one or more of the following securities by the Company pursuant to Rule 415 under the Act: (i) shares of common stock, par value $0.001
per share, of the Company (“Common Stock”), which may include shares of Common Stock that constitute a part of or that are
issuable upon the conversion or exercise of other Securities (as defined herein) registered under the Registration Statement; (ii) preferred
stock, par value $0.001 per share, of the Company (“Preferred Stock” and together with Common Stock, “Equity Securities”),
which may include shares of Preferred Stock that constitute a part of or that are issuable upon the conversion or exercise of other Securities
registered under the Registration Statement; (iii) warrants covering Equity Securities and/or Debt Securities (as defined below) (“Warrants”),
which may include Warrants that constitute a part of or that are issuable upon the conversion or exercise of other Securities registered
under the Registration Statement; (iv) one or more series of debt securities of the Company and/or convertible debt securities of the
Company (“Debt Securities”), which may include convertible Debt Securities of the Company that constitute a part of or that
are issuable upon the conversion or exercise of other Securities registered under the Registration Statement; (v) rights to purchase shares
of Equity Securities, and rights to purchase Debt Securities and/or Units (as defined below) (“Rights”); and (vi) units consisting
of Equity Securities, Warrants, Debt Securities and/or Rights (“Units”). Such Equity Securities, Warrants, Debt Securities,
Rights and Units are referred to collectively in this opinion as “Securities.”
This opinion is being furnished in accordance with the requirements
of Item 16 of Form S-3 and Item 601(b)(5)(i) of Regulation S-K.
In connection with the foregoing, we have relied upon, among other
things, our examination of such documents, records of the Company and certificates of its officers and public officials as we deemed necessary
for purposes of the opinions expressed below. In our examination of documents for purposes of this opinion, we have assumed, and express
no opinion as to, the authenticity and completeness of all documents submitted to us as originals, the conformity to originals and completeness
of all documents submitted to us as copies, the legal capacity of all persons or entities executing the same, the genuineness of all signatures,
the lack of any undisclosed termination, modification, waiver, or amendment to any document reviewed by us, and the due authorization,
execution, and delivery of all documents by the Company’s shareholders where due authorization, execution, and delivery are prerequisites
to the effectiveness thereof.
Board of Directors
Citius Pharmaceuticals, Inc.
February 23, 2024
Page 2
In expressing the opinions set forth below, we also have assumed the
following:
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(1) |
Prior to the issuance of (a) any Equity Securities that are not outstanding as of the date hereof or (b) any Warrants covering the Equity Securities, the Company will have available for issuance, under its Amended and Restated Articles of Incorporation, as amended (the “Articles of Incorporation”), and as may be further amended from time to time and as in effect at the time thereof, the requisite number of authorized but unissued shares of Common Stock and/or Preferred Stock; |
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(2) |
At the time of the issuance, sale, and delivery, as applicable, of any Debt Securities, Warrants, Rights or Units: (a) the execution, delivery and performance by the Company of the indenture in substantially the form of Exhibit 4.22 to the Registration Statement and any supplemental indenture thereto (any such indenture, together with any applicable supplemental indenture, the “Indenture”), warrant agreement, rights agreement or unit agreement (collectively, the “Documents”), as applicable, and all actions necessary for the issuance of the applicable Securities, and the form and terms thereof, will comply with all requirements and restrictions, if any, applicable to the Company, whether imposed by any agreement or instrument to which the Company is a party or by which it is bound or by any court or other governmental or regulatory body having jurisdiction over the Company; (b) the Company will have duly authorized, executed, and delivered any such Document and will have duly authorized the issuance of any such Security, and none of such authorizations will have been modified or rescinded, and there will not have occurred any change in law affecting the validity, legally binding character, or enforceability thereof; and (c) with respect to any Document executed or to be executed by any party other than the Company, such party has, or will have, duly authorized, executed, and delivered the Documents to which it is a party and each such Document is, or will be, the valid and binding obligation of such party, enforceable against it in accordance with its terms; |
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(3) |
The Registration Statement and any additional amendments thereto (including post-effective amendments) will have become effective, will be effective, and will comply with all applicable laws at the time the Securities are offered or issued as contemplated by the Registration Statement; |
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(4) |
A prospectus supplement will have been prepared and filed with the Commission describing the Securities offered thereby and will comply with all applicable laws; |
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(5) |
Any Securities being offered pursuant to a prospectus supplement will be issued and sold as contemplated in the Registration Statement and such prospectus supplement; |
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(6) |
There shall not have occurred any change in law affecting the validity of the Securities; and |
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(7) |
The Company will remain duly organized, validly existing, and in good standing under the laws of the State of Nevada. |
Board of Directors
Citius Pharmaceuticals, Inc.
February 23, 2024
Page 3
We render this opinion only with respect to, and express no opinion
herein concerning the application or effect of, the laws of any jurisdiction other than the existing laws of the State of Nevada and reported
judicial decisions relating thereto.
Based upon and subject to the foregoing and the additional limitations,
qualifications, exceptions and assumptions set forth below, it is our opinion that:
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(1) |
With respect to the Equity Securities: (a) when the Company’s board of directors or any duly designated committee thereof has adopted resolutions approving the issuance and sale of Equity Securities at a specified price or pursuant to a specified pricing mechanism; (b) if Equity Securities are to be sold in a firm commitment underwritten offering or in a best efforts placement offering, an underwriting agreement or placement agency agreement with respect to such Equity Securities has been duly authorized, executed, and delivered by the Company and the other parties thereto; (c) any legally required consents, approvals, authorizations and other orders of the Commission and any other regulatory authorities have been obtained; (d) when a Certificate of Amendment to the Articles of Incorporation relating to any Preferred Stock has been duly executed and filed with the Office of the Secretary of State of the State of Nevada; (e) when certificates representing the Equity Securities have been duly executed by appropriate officers of the Company or appropriate book entries have been made in the records of the Company; (f) when the Equity Securities have been duly and properly sold, paid for, and delivered as contemplated in the Registration Statement, and the prospectus supplement relating thereto and setting forth the terms of any Preferred Stock and, if applicable, in accordance with the applicable underwriting or other purchase agreement; and (g) if applicable, the Equity Securities have been issued against payment therefor in accordance with any applicable agreement governing the issuance of Equity Securities pursuant to the exercise or conversion of any Warrant, Right or Unit, then the Equity Securities will be validly issued, fully paid, and nonassessable. |
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(2) |
With respect to the Warrants: (a) when the Company’s board of directors or any duly designated committee thereof has adopted resolutions approving the issuance and sale of Warrants at a specified price or pursuant to a specified pricing mechanism; (b) if the Warrants are to be sold in a firm commitment underwritten offering or in a best efforts placement offering, an underwriting agreement or placement agency agreement with respect to such Warrants has been duly authorized, executed, and delivered by the Company and the other parties thereto; (c) any legally required consents, approvals, authorizations and other orders of the Commission and any other regulatory authorities have been obtained; (d) any shares of Equity Securities or any Debt Securities purchasable upon exercise of the Warrants, as applicable, have been duly and validly authorized and reserved for issuance and sale; (e) when a Certificate of Amendment to the Articles of Incorporation relating to any Preferred Stock has been duly executed and filed with the Office of the Secretary of State of the State of Nevada; and (f) the warrant agreements have been duly executed and the Warrants duly sold by the Company against payment therefor in accordance with any applicable underwriting or other purchase agreement, and in accordance with such corporate action and applicable law and as contemplated in the Registration Statement and the prospectus supplement setting forth the terms of the Warrants and the plan of distribution, then, upon the happening of such events, the Warrants will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting creditors’ rights, and subject to general equity principles and to limitations on availability of equitable relief, including specific performance. |
Board of Directors
Citius Pharmaceuticals, Inc.
February 23, 2024
Page 4
|
(3) |
With respect to the Debt Securities: (a) when the Company’s board of directors or any duly designated committee thereof has adopted resolutions approving the issuance and sale of Debt Securities at a specified price or pursuant to a specified pricing mechanism; (b) if the Debt Securities are to be sold in a firm commitment underwritten offering or in a best efforts placement offering, an underwriting agreement or placement agency agreement with respect to such Debt Securities has been duly authorized, executed, and delivered by the Company and the other parties thereto; (c) the Indenture has been duly executed and delivered on behalf of the Company and a trustee qualified to act as such under applicable law and such Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended; (d) all necessary corporate action has been taken by the Company to authorize the form, terms, execution, and delivery of the Debt Securities; (e) any legally required consents, approvals, authorizations and other orders of the Commission and any other regulatory authorities have been obtained; and (f) such Debt Securities have been duly executed by the Company and authenticated by the applicable trustee in accordance with the Indenture and have been duly issued and delivered against payment therefor in accordance with such corporate action and applicable law and as contemplated in the Registration Statement and the prospectus supplement setting forth the terms of the Debt Securities and the plan of distribution, then, upon the happening of such events, such Debt Securities will constitute the valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting creditors’ rights, and subject to general equity principles and to limitations on availability of equitable relief, including specific performance. |
|
(4) |
With respect to the Rights: (a) when the Company’s board of directors or any duly designated committee thereof has adopted resolutions approving the issuance and sale of Rights at a specified price or pursuant to a specified pricing mechanism; (b) if the Rights are to be sold in a firm commitment underwritten offering or in a best efforts placement offering, an underwriting agreement or placement agency agreement with respect to such Rights has been duly authorized, executed, and delivered by the Company and the other parties thereto; (c) any legally required consents, approvals, authorizations, and other orders of the Commission and any other regulatory authorities have been obtained; (d) any shares of Equity Securities and any Debt Securities and/or Units to be issued pursuant to such Rights have been duly and validly authorized and reserved for issuance and sale; and (e) the rights agreements have been duly executed and the Rights duly sold by the Company against payment therefor in accordance with any applicable underwriting or other purchase agreement, and in accordance with such corporate action and applicable law and as contemplated in the Registration Statement and the prospectus supplement setting forth the terms of the Rights and the plan of distribution, then, upon the happening of such events, the Rights will constitute the valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting creditors’ rights, and subject to general equity principles and to limitations on availability of equitable relief, including specific performance. |
Board of Directors
Citius Pharmaceuticals, Inc.
February 23, 2024
Page 5
|
(5) |
With respect to the Units: (a) when the Company’s board of directors or any duly designated committee thereof has adopted resolutions approving the issuance and sale of Units at a specified price or pursuant to a specified pricing mechanism; (b) if the Units are to be sold in a firm commitment underwritten offering or in a best efforts placement offering, an underwriting agreement or placement agency agreement with respect to such Units has been duly authorized, executed, and delivered by the Company and the other parties thereto; (c) any legally required consents, approvals, authorizations, and other orders of the Commission and any other regulatory authorities have been obtained; (d) any shares of Equity Securities and any Debt Securities, Warrants and/or Rights to be issued pursuant to such Units have been duly and validly authorized and reserved for issuance and sale; and (e) the unit agreements have been duly executed and the Units duly sold by the Company against payment therefor in accordance with the underwriting or other purchase agreement, and in accordance with such corporate action and applicable law and as contemplated in the Registration Statement and the prospectus supplement setting forth the terms of the Units and the plan of distribution, then, upon the happening of such events, the Units will constitute the valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting creditors’ rights, and subject to general equity principles and to limitations on availability of equitable relief, including specific performance. |
We hereby consent to the filing of this opinion with the Commission
as Exhibit 5.1 to the Registration Statement and reference to our firm under the heading “Legal Matters” in the prospectuses
included therein. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section
7 of the Act or the rules and regulations promulgated thereunder by the Commission.
This opinion is intended solely for use in connection with the sale
of the Securities subject to the Registration Statement and is not to be relied upon for any other purpose. This opinion is rendered as
of the date first written above and based solely on our understanding of facts in existence as of such date after the aforementioned examination.
We assume no obligation to advise you of any fact, circumstance, event
or change in the law or the facts that may hereafter be brought to our attention whether or not such occurrence would affect or modify
any of the opinions expressed herein.
Sincerely,
/s/ Wyrick Robbins Yates & Ponton LLP
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We consent to the incorporation by reference in this Registration Statement
on Form S-3 and related Prospectus of Citius Pharmaceuticals, Inc. of our report dated December 29, 2023, relating to the consolidated
financial statements of Citius Pharmaceuticals, Inc., appearing in the Annual Report on Form 10-K for the year ended September 30, 2023.
We also consent to the reference to our Firm under the caption “Experts”
in such Prospectus.
/s/ Wolf & Company, P.C. |
|
|
|
Wolf & Company, P.C. |
|
Boston, Massachusetts |
|
February 23, 2024 |
|
Exhibit 107
Calculation of Filing Fee Tables
Form S-3
(Form Type)
Citius Pharmaceuticals, 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 | | |
Proposed
Maximum
Offering Price Per
Unit | | |
Maximum
Aggregate Offering Price (2) | | |
Fee
Rate | |
Amount
of
Registration Fee |
|
Newly
Registered Securities |
|
Fees
to Be Paid | |
Primary
Offering Equity | |
Common
Stock, par value $0.001 per share | |
| | | |
| | | |
| | | |
| | | |
| |
| |
|
| |
Equity | |
Preferred
Stock, par value $0.001 per share | |
| | | |
| | | |
| | | |
| | | |
| |
| |
|
| |
Debt | |
Debt
Securities | |
| | | |
| | | |
| | | |
| | | |
| |
| |
|
| |
Other | |
Warrants | |
| | | |
| | | |
| | | |
| | | |
| |
| |
|
| |
Other | |
Units | |
| | | |
| | | |
| | | |
| | | |
| |
| |
|
| |
Other | |
Rights | |
| | | |
| | | |
| | | |
| | | |
| |
| |
|
| |
Unallocated
(Universal) Shelf | |
— | |
| 457(o) | | |
| | (1) | |
| | (2) | |
$ | 250,000,000 | | |
$0.0001476 | |
$ | 36,900.00 |
|
Fees
Previously Paid | |
| |
| |
| | | |
| | | |
| | | |
| | | |
| |
| |
|
Carry
Forward Securities |
|
Carry
Forward Securities | |
| |
— | |
| — | | |
| — | | |
| — | | |
| — | | |
— | |
| — |
|
| |
Total
Offering Amounts | | |
| | | |
$ | 250,000,000 | | |
| |
$ | 36,900.00 |
|
| |
Total
Fees Previously Paid | | |
| | | |
| — | | |
| |
$ | 0 |
|
| |
Total
Fee Offsets | | |
| | | |
| — | | |
| |
$ | 0 |
|
| |
Net
Fee Due | | |
| | | |
| | | |
| |
$ | 36,900.00 |
|
(1) |
There are being registered under this registration statement such indeterminate number of shares of common stock, preferred stock, debt securities, warrants, units and/or rights of the registrant as shall have an aggregate initial offering price not to exceed $250,000,000. Any securities registered under this registration statement may be sold separately or as units with other securities registered under this registration statement. The securities registered also include such indeterminate number of securities that may be issued upon exercise, settlement, exchange or conversion of securities offered or sold hereunder. Separate consideration may or may not be received for securities that are issuable upon conversion, exercise or exchange of other securities. The amount of each class of securities being registered under this registration statement is not specified pursuant to General Instruction II.D. of Form S-3 under the Securities Act of 1933, as amended (the “Securities Act”). In addition, pursuant to Rule 416 under the Securities Act, there are also being registered an indeterminable number of securities as may be issued with respect to prevent dilution resulting from stock splits, stock dividends or similar transactions. |
|
|
(2) |
The proposed maximum offering price per unit or security will be determined, from time to time, by the registrant in connection with the issuance by the registrant of the securities registered hereunder and is not specified as to each class of security pursuant to Instruction 2.A.iii.b. to the Calculation of Filing Fee Tables and Related Disclosure on Item 16(b) of Form S-3 under the Securities Act. |
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