As filed with the Securities and Exchange Commission
on February 7, 2024
Registration No. 333-_____
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AudioEye, Inc.
(Exact name of registrant as specified in its
charter)
Delaware |
|
20-2939845 |
(State
or other jurisdiction of incorporation or organization) |
|
(I.R.S.
Employer Identification No.) |
5210 E. Williams Circle, Suite 750
Tucson, AZ 85711
+1 (866) 331-5324
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
James Spolar
General Counsel and Corporate
Secretary
AudioEye, Inc.
5210 E. Williams Circle,
Suite 750, Tucson, AZ 85711
+1 (866) 331-5324
(Name, address, including
zip code, and telephone number, including area code, of agent for service)
With copies to:
Jonathan R. Zimmerman
Matthew R. Kuhn
Faegre Drinker Biddle &
Reath LLP
2200 Wells Fargo Center
90 South Seventh Street
Minneapolis, Minnesota 55402-3901
+1 (612) 766-7000
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, as amended,
other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: x
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act registration statement number of the earlier effective registration statement
for the same offering. ¨
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box
and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ¨
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following
box. ¨
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated
filer |
¨ |
Accelerated filer |
¨ |
Non-accelerated filer |
⌧ |
Smaller reporting company |
x |
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. ¨
STATEMENT PURSUANT TO RULE 429
Pursuant to Rule 429 under the Securities
Act, the prospectus that is a part of this registration statement is a combined prospectus that relates to and will be used in connection
with the offer and resale by the selling shareholders named therein of the 820,000 shares of common stock shares newly registered hereby
and 2,000,000 shares of common stock that were previously registered by Registration Statement No. 333-252864, which was declared
effective on February 11, 2021, that, to the registrant’s knowledge, have not been sold or otherwise disposed of by the selling
shareholders named therein. Accordingly, the combined prospectus relates to a total of 2,820,000 shares of common stock that may be offered
and sold by the selling shareholders named therein pursuant to this registration statement and Registration Statement No. 333-252864.
This registration statement shall constitute a post-effective amendment to Registration Statement No. 333-252864, and such post-effective
amendment shall hereafter become effective concurrently with the effectiveness of this registration statement and in accordance with
Section 8(c) of the Securities Act.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION
STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT
WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT
TO SAID SECTION 8(a), MAY DETERMINE.
The information in this prospectus is not complete and may be changed.
We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any jurisdiction where
the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED FEBRUARY 7, 2024
PROSPECTUS
AudioEye, Inc.
$150,000,000
Common Stock
Preferred Stock
Debt Securities
Stock Purchase Contracts
Warrants
Rights
Units
2,820,000 Shares of Common
Stock
Offered by the Selling Stockholders
We may offer and sell, from time to time in one
or more offerings, up to $150,000,000 in the aggregate of common stock, preferred stock, debt securities, stock purchase contracts, warrants,
rights and units, in any combination. We intend to use the proceeds, if any, for general corporate purposes unless otherwise indicated
in the applicable prospectus supplement. In addition, the selling stockholders may offer and sell, from time to time, up to 2,820,000
shares of our common stock under this prospectus. We will not receive any of the proceeds from the sale of the common stock by the selling
stockholders.
This prospectus provides you with a general description
of the securities offered. Each time we, and if applicable any of the selling stockholders, offer and sell securities, we or such selling
stockholders will file a prospectus supplement to this prospectus that contains specific information about the offering and, if applicable,
the amounts, prices and terms of the securities. Such supplements may also add, update or change information contained in this prospectus.
You should carefully read this prospectus and the applicable prospectus supplement before you invest in any of our securities. This prospectus
may not be used to consummate sales of securities unless accompanied by a prospectus supplement.
We
may offer and sell the securities described in this prospectus and any prospectus supplement directly to our stockholders or to other
purchasers or through agents on our behalf or through underwriters or dealers as designated from time to time. In addition, the selling
stockholders may offer and sell shares of our common stock from time to time, together or separately. If any agents or underwriters are
involved in the sale of any of these securities, the applicable prospectus supplement will provide the names of the agents or underwriters
and any applicable fees, commission or discounts. See the sections of this prospectus entitled “About this Prospectus”
and “Plan of Distribution” for more information. This prospectus may not be used by us to offer and sell our securities
unless accompanied by a prospectus supplement describing the method and terms of the offering of the securities.
Our common stock is listed on The Nasdaq Capital
Market (“Nasdaq”) under the symbol “AEYE”. On February 6, 2024, the last reported sale price of our common
stock on the Nasdaq was $4.87.
The selling stockholders identified in this prospectus,
or their pledgees, donees, permitted transferees, assignees or successors, may offer our common stock from time to time through public
or private transactions at prevailing market prices, at prices related to prevailing market prices, or at privately negotiated prices.
We provide additional information about how the selling stockholders may sell their common stock in the section entitled “Plan
of Distribution” in this prospectus. We will not be paying any underwriting discounts or selling commissions in connection with
any offering of the common stock by the selling shareholders under this prospectus.
Investing
in our securities involves risks. You should carefully read and consider the “Risk Factors” included in this
prospectus, in our periodic reports, in any applicable prospectus supplement relating to a specific offering of securities and in any
other documents we file with the U.S. Securities and Exchange Commission (“SEC”). See the section entitled “Risk Factors”
on page 6 of this prospectus, in our other filings with the SEC and in the applicable prospectus supplement, if any.
Neither the SEC nor any state securities commission
has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary
is a criminal offense.
The date of this prospectus is ,
2024.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement
that we filed with the SEC using a “shelf” registration process. By using a shelf registration statement, we may sell securities
described in this prospectus from time to time and in one or more offerings up to a total dollar amount of $150,000,000. This prospectus
provides you with a general description of our securities that we may offer, which is not meant to be a complete description of each
of the securities.
In addition, under this
shelf registration process, the selling stockholders named herein may, from time to time, sell the securities offered by them described
in this prospectus. We will not receive any proceeds from the sale by such selling stockholders of the common stock offered by them described
in this prospectus.
We
may also provide a prospectus supplement or post-effective amendment to the registration statement to add information to, or update or
change information contained in, this prospectus. You should read both this prospectus and any applicable prospectus supplement or post-effective
amendment to the registration statement together with the additional information to which we refer you in the sections of this prospectus
titled “Where You Can Find More Information.”
To
the extent required by applicable law, each time we or the selling stockholders sell securities, we or the selling stockholders will
provide you with this prospectus and, to the extent required, a prospectus supplement that will contain more information about the specific
terms of the offering. The prospectus supplement may also add, update or change information contained in this prospectus or in documents
incorporated by reference in this prospectus. If there is any inconsistency between the information in this prospectus and the applicable
prospectus supplement, you should rely on the prospectus supplement, provided that if any statement in one of these documents is inconsistent
with a statement in another document having a later date — for example, a document incorporated by reference in this
prospectus or any prospectus supplement — the statement in the later-dated document automatically modifies and supersedes
the earlier statement. We urge you to carefully read this prospectus, any applicable prospectus supplement, if any, together with the
information incorporated herein and therein by reference as described under the headings “Where You Can Find More Information“
and “Incorporation of Certain Documents by Reference“ before buying any of the securities being offered.
You
should rely only on the information contained in this prospectus, and any accompanying prospectus supplement, including the information
incorporated by reference herein as described under “Where You Can Find More Information“ and “Incorporation of Certain Documents by Reference“, and any free writing prospectus that we prepare and distribute. Neither we, nor the selling
stockholders, have authorized any other person to provide you with different or additional information. If anyone provides you with different
or additional information, you should not rely on it. We and the selling stockholders may only offer to sell, and seek offers to buy
any securities in jurisdictions where offers and sales are permitted.
This prospectus and any accompanying prospectus
supplement or other offering materials do not contain all of the information included in the registration statement as permitted by the
rules and regulations of the SEC. For further information, we refer you to the registration statement on Form S-3, including
its exhibits. We are subject to the informational requirements of the Securities Exchange Act of 1934 (the “Exchange Act”),
and, therefore, file reports and other information with the SEC. Statements contained in this prospectus and any accompanying prospectus
supplement or other offering materials about the provisions or contents of any agreement or other document are only summaries. If SEC
rules require that any agreement or document be filed as an exhibit to the registration statement, you should refer to that agreement
or document for its complete contents.
This prospectus incorporates by reference, and
any prospectus supplement or free writing prospectus may contain and incorporate by reference, certain market and industry data obtained
from independent market research, industry publications and surveys, governmental agencies and publicly available information. Industry
surveys, publications and forecasts generally state that the information contained therein has been obtained from sources believed to
be reliable, although they do not guarantee the accuracy or completeness of such information. We believe the data from such third-party
sources to be reliable. However, we have not independently verified any of such data and cannot guarantee its accuracy or completeness.
Similarly, internal market research and industry forecasts, which we believe to be reliable based upon our management’s knowledge
of the market and the industry, have not been verified by any independent sources. While we are not aware of any misstatements regarding
the market or industry data presented herein, our estimates involve risks and uncertainties and are subject to change based on various
factors.
You should assume that the information in
this prospectus, any accompanying prospectus supplement or any other offering materials is only accurate as of the date on its respective
cover, and that any information incorporated by reference is accurate only as of the date of the document incorporated by reference,
unless otherwise indicated. Our business, financial condition, results of operations and prospects may have changed since such date.
Unless stated otherwise, references to “we,”
“us,” “our,” the “Company” refer to AudioEye, Inc. References to the “selling stockholders”
refer to the stockholders listed herein under the heading “Selling Stockholders” and any of their pledgees, donees, permitted
transferees, assignees and successors.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports,
proxy statements and other information with the SEC. The SEC maintains an Internet site that contains our reports, proxy and other information
regarding us and other issuers that file electronically with the SEC, at http://www.sec.gov. Our SEC filings are also available at our
website (www.AudioEye.com). However, except for our filings with the SEC that are incorporated by reference into this prospectus, the
information on our website is not, and should not be deemed to be, a part of, or incorporated by reference into this prospectus.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows “incorporation by reference”
into this prospectus of information that we file with the SEC. This permits us to disclose important information to you by referencing
these filed documents. Any information referenced this way is considered to be a part of this prospectus and any information filed by
us with the SEC subsequent to the date of this prospectus automatically will be deemed to update and supersede this information. We incorporate
by reference the following documents which we have filed with the SEC (excluding any documents or portions of such documents that have
been “furnished” but not “filed” for purposes of the Exchange Act):
(3) |
The Registrant’s
Current Reports on Form 8-K filed on March 28, 2023, May 22, 2023, August 15, 2023, August 21, 2023,
November 30, 2023, December 8, 2023, and December 28, 2023; and |
We incorporate by reference any filings made
by us with the SEC in accordance with Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act on or after the date of this prospectus
and the date all of the securities offered hereby are sold or the offering is otherwise terminated, with the exception of any information
furnished under Item 2.02 and Item 7.01 (including any financial statements or exhibits relating thereto furnished pursuant to Item 9.01)
of Form 8-K, which is not deemed filed and which is not incorporated by reference herein. Any such filings shall be deemed to be
incorporated by reference and to be a part of this prospectus from the respective dates of filing of those documents.
This prospectus and any accompanying prospectus
supplement are part of a registration statement that we filed with the SEC and do not contain all of the information in the registration
statement. The full registration statement may be obtained from the SEC or us, as provided below. Statements in this prospectus or any
accompanying prospectus supplement or free writing prospectus about these documents are summaries and each statement is qualified in
all respects by reference to the document to which it refers. You should refer to the actual documents for a more complete description
of the relevant matters. You may inspect a copy of the registration statement at the SEC’s website, as provided above.
Any statement contained in a document incorporated
or deemed to be incorporated by reference in this prospectus will be deemed to be modified or superseded to the extent that a statement
contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference in this prospectus
modifies or supersedes that statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded,
to constitute a part of this prospectus.
We will provide to each person, including any
beneficial owner, to whom a prospectus is delivered, without charge, upon written or oral request, a copy of any or all of the documents
that are incorporated by reference into this prospectus but not delivered with this prospectus, excluding any exhibits to those documents
unless the exhibit is specifically incorporated by reference as an exhibit in this prospectus. You should direct requests for documents
to:
AudioEye, Inc.
Attn: Investor Relations
5210 E. Williams Circle, Suite 750
Tucson, AZ 85711
+1 (866) 331-5324
PROSPECTUS SUMMARY
This
summary highlights certain information about us and selected information contained elsewhere in or incorporated by reference into this
prospectus. This summary is not complete and does not contain all of the information that you should consider before deciding to invest
in our common stock. For a more complete understanding of our company, we encourage you to read and consider carefully the more detailed
information in this prospectus, including the information incorporated by reference in this prospectus, and the information under the
heading “Risk Factors” in this prospectus, beginning on page 6, before making an investment decision.
THE COMPANY
Overview
AudioEye is an industry-leading
digital accessibility platform delivering website accessibility compliance at all price points to businesses of all sizes. Our solutions
advance accessibility with patented technology that reduces barriers, expands access for individuals with disabilities, and enhances
the user experience for a broader audience. We believe that, when implemented, our solution offers businesses and organizations the opportunity
to reach more customers, improve brand image, build additional brand loyalty, and, most importantly, provide an accessible and usable
web experience to the expansive and ever-growing global population of individuals with disabilities.
We primarily generate revenue
through the sale of subscriptions for our software-as-a-service (“SaaS”) accessibility solutions. Our solutions are backed
by machine-learning/AI-driven technology that finds and fixes common accessibility errors. Our core and supplemental solutions are designed
to help websites and applications achieve and sustain substantial conformance with AudioEye’s interpretation of the Web Content
Accessibility Guidelines (“WCAG”) which are web accessibility standards published by the Web Accessibility Initiative of
the World Wide Web Consortium, the main international standards organization for the internet. Our solutions help mitigate a customer’s
risk of costly digital accessibility-related legal action. Our customers may purchase solutions directly through the AudioEye Marketplace,
through a platform partner or an agency, such as Duda, that integrates our solutions into their marketplace, through a vertical Content
Management System (“CMS”) partner, through an authorized reseller, or by working directly with the AudioEye sales team.
We stand out among our competitors
because we offer automated and human assisted technological remediations along with continuous monitoring of accessibility issues without
fundamental changes to the website architecture. We also recognize that automation alone cannot fix all accessibility issues, which is
why we also offer certified accessibility experts, who can provide human assisted technological testing and remediations. Our solution
is trusted by some of the largest and most influential companies in the world, including Samsung, Landry’s, Calvin Klein and others.
Government agencies, such as the Federal Communications Commission, use our software with their digital platforms. We also work with
government agencies at the state and local level.
We manage customers through
two primary channels, Enterprise and Partner and Marketplace. Enterprise channel consists of our larger customers and organizations,
including those with non-platform custom websites, who generally engage directly with AudioEye sales personnel for custom pricing and
solutions. This channel also includes federal, state, and local government agencies. The Partner and Marketplace channel consists of
our CMS partners, platform & agency partners, authorized resellers and the Marketplace. This channel serves small and medium
sized businesses that are on a partner or reseller’s web-hosting platform or that purchase an AudioEye solution from our Marketplace.
Our Corporate Information
We
were formed as a Delaware corporation on May 20, 2005. We maintain our principal executive offices at 5210 E. Williams Circle, Suite 750,
Tucson, AZ 85711 and our telephone number is +1 (866) 331-5324. Our corporate website address is www.AudioEye.com. We have included
our website address as a factual reference and the information contained on or connected to our website is not incorporated by reference
in, and is not a part of, this prospectus. You should not rely on such information in making your decision whether to purchase our securities.
Securities
that may be Offered
Issuer |
AudioEye, Inc. |
|
|
Securities Offered |
|
|
|
Primary Securities Offered |
We may offer up to $150,000,000 of:
·
common stock;
·
preferred stock;
·
debt securities;
·
stock purchase contracts;
·
warrants;
·
rights; and
·
units.
We may also offer securities of the types
listed above that are convertible or exchangeable into one or more of the securities listed above.
|
Secondary Securities Offered |
Our selling stockholders
may offer up to 2,820,000 shares of our common stock. |
|
|
Use of Proceeds |
|
|
|
Primary Offering |
We intend to use the net
proceeds from the sale of any securities offered by us for general corporate purposes unless otherwise indicated in the applicable
prospectus supplement. |
|
|
Secondary Offering |
We will not receive any
proceeds from the resale of the shares of our common stock by the selling stockholders. |
|
|
Risk Factors |
Investing in our common
stock involves a high degree of risk. See “Risk Factors” beginning on page 6 of this prospectus, and any
other risk factors described in a prospectus supplement and in the documents incorporated herein and therein by reference, for a
discussion of certain factors that you should carefully consider before deciding to invest in our common stock. |
|
|
Nasdaq Capital Market symbol |
AEYE |
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING
STATEMENTS
Certain statements made in this prospectus, the
documents that are incorporated by reference in this prospectus and other written or oral statements made by or on behalf of our Company
may constitute “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933 (the “Securities
Act”) and Section 21E of the Exchange Act. In some cases, you may be able to identify forward-looking statements by terms
such as “may,” “should,” “will,” “forecasts,” “expects,” “plans,”
“anticipates,” “believes,” “estimates,” “predicts,” “projects,” “potential”
or “continue,” the negative of these terms and other similar expressions that predict or indicate future events or trends
or that are not statements of historical matters. These forward-looking statements relate to our future plans, objectives, expectations,
intentions and financial performance and the assumptions that underlie these statements, and are based only on our current beliefs, expectations
and assumptions regarding the future of our business, future plans and strategies, projections, anticipated events and trends, the economy
and other future conditions and speak only as of the date on which they are made.
Because these forward-looking statements involve
known and unknown risks and uncertainties, there are important factors that could cause actual results, events or developments to differ
materially from those expressed or implied by these forward-looking statements, including our plans, objectives, expectations and intentions
and other factors discussed in “Part I, Item 1A. Risk Factors” contained in our most recent Annual Report on Form 10-K
and any subsequent Quarterly Reports on Form 10-Q. Risk factors that could cause actual results to differ from those contained in
the forward-looking statements include but are not limited to risks related to:
|
· |
the uncertain market acceptance
of our existing and future products; |
|
· |
our need for, and the availability
of, additional capital in the future to fund our operations and the development of new products; |
|
· |
the success, timing and
financial consequences of new strategic relationships or licensing agreements we may enter into; |
|
|
|
|
· |
rapid changes in Internet-based
applications that may affect the utility and commercial viability of our products; |
|
· |
the timing and magnitude
of expenditures we may incur in connection with our ongoing product development activities; |
|
· |
judicial applications of
accessibility laws to the internet; |
|
|
|
|
· |
the level of competition
from our existing competitors and from new competitors in our marketplace; and |
|
· |
the regulatory environment
for our products and services. |
You should not rely on these forward-looking statements,
since there can be no assurance that these forward-looking statements will prove to be accurate. Forward-looking statements speak only
as of the date they are made, and we expressly disclaim any intention or obligation to update or revise any forward-looking statements,
whether as a result of new information, future events or otherwise. You are advised, however, to consult any further disclosures we make
on related subjects in our subsequent Quarterly Reports on Form 10-Q and Current Reports on Form 8-K. This cautionary note
is applicable to all forward-looking statements contained in or incorporated by reference in this prospectus.
RISK FACTORS
Investing
in our securities involves risks. You should carefully consider the risk factors included in this prospectus, as well as described in
Part I, Item 1A, “Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2022 and any updates to those risk factors or new risk factors contained in our subsequent Annual Reports on Form 10-K, Quarterly
Reports on Form 10-Q or Current Reports on Form 8-K, all of which are incorporated by reference into this prospectus, as the
same may be amended, supplemented or superseded from time to time by our filings under the Exchange Act, as well as any prospectus supplement
relating to a specific offering or resale. Before making any investment decision, you should carefully consider these risks as well as
other information we include or incorporate by reference in this prospectus or in any applicable prospectus supplement or free writing
prospectus. For more information, see the section entitled “Where You Can Find More Information” and “Incorporation of Documents by Reference” elsewhere in this prospectus. These risks could materially affect our business, results of operations
or financial condition and affect the value of our securities. You could lose all or part of your investment. Additionally, the risks
and uncertainties discussed in this prospectus or in any document incorporated by reference into this prospectus are not the only risks
and uncertainties that we face, and additional risks and uncertainties not presently known to us or that we currently deem immaterial
may also affect our business, results of operations or financial condition.
Risks Related to This Offering
Management will have broad discretion as
to the use of the proceeds from this offering, and we may not use the proceeds effectively.
You will be relying on the judgment of our management
with regard to the use of these net proceeds, and you will not have the opportunity, as part of your investment decision, to assess whether
the proceeds are being used appropriately. Our management will have broad discretion in the application of the net proceeds from this
offering and could spend the proceeds in ways that do not improve our results of operations or enhance the value of our common stock.
Our failure to apply these funds effectively could have a material adverse effect on our business and cause the price of our common stock
to decline.
You may experience dilution as a result
of this or future offerings.
In order to raise additional capital, we may
in the future offer additional shares of our common stock or other securities convertible into or exchangeable for our common stock.
We cannot assure you that we will be able to sell shares or other securities in any other offering at a price per share that is equal
to or greater than the price per share paid by investors in this offering, and investors purchasing our shares or other securities in
the future could have rights superior to existing stockholders. The price per share at which we sell additional shares of our common
stock or other securities convertible into or exchangeable for our common stock in future transactions may be higher or lower than the
price per share in this offering.
Resales of our common stock in the public
market during this offering by our stockholders may cause the market price of our common stock to fall.
We may issue common or preferred stock from time
to time in connection with this offering. This issuance from time to time of these new shares, or our ability to issue these shares in
this offering, could result in resales of our common stock by our current stockholders concerned about the potential dilution of their
holdings. In turn, these resales could have the effect of depressing the market price for our common stock.
We are not currently paying dividends and
will likely continue not paying cash dividends on our common stock for the foreseeable future.
We have never paid cash dividends on our common
stock and do not anticipate paying any cash dividends on our common stock for the foreseeable future. Future credit facilities may also
restrict us from paying dividends on our securities. Investors should not rely on an investment in us if they require income generated
from dividends paid on our capital stock. Any income derived from our common stock may only come from a rise in the market price of our
common stock, which is uncertain and unpredictable.
Risks Related to the Common Stock Offered by the Selling Shareholders
If the selling shareholders sell significant
amounts of our common stock, or the perception exists that these sales could occur, such events could cause our common share price to
decline.
This prospectus also covers the resale from time
to time by the selling shareholders of up to 2,820,000 shares of our common stock. Once the registration statement of which this prospectus
is a part is declared effective, all of these shares will be available for resale in the public market. If the selling shareholders sell
significant amounts of our common stock following the effectiveness of the registration statement of which this prospectus is a part,
the market price of our common stock could decline. Further, the perception of these sales could impair our ability to raise additional
capital through the sale of our equity securities.
USE OF PROCEEDS
Except as otherwise provided in the applicable
prospectus supplement, we intend to use the net proceeds from the sale of the securities by us offered by this prospectus for general
corporate purposes, which may include working capital, capital expenditures, the repayment or refinancing of existing indebtedness and
other investments. Additional information on the use of net proceeds from the sale of securities offered by us by this prospectus may
be set forth in the prospectus supplement relating to that offering.
We will not receive any proceeds from the sale
of securities by the selling stockholders. All of the securities offered by the selling stockholders pursuant to this prospectus will
be sold by the selling stockholders for their respective accounts.
DESCRIPTION OF CAPITAL STOCK
The
following is a summary of the material terms of our capital stock and certain provisions of our amended and restated certificate of incorporation,
as amended (our “amended and restated certificate of incorporation”) and amended and restated bylaws. It also summarizes
some relevant provisions of the Delaware General Corporation Law (“DGCL”), which we sometimes refer to as Delaware law. Since
the terms of our amended and restated certificate of incorporation and amended and restated bylaws, and Delaware law, are more detailed
than the general information provided below, you should only rely on the actual provisions of those documents and Delaware law. If you
would like to read our amended and restated certificate of incorporation or amended and restated bylaws, they are on file with the SEC.
See the section entitled “Where You Can Find More Information“ and “Incorporation of Documents by Reference“
contained elsewhere.
General
As of the date of this prospectus, we are authorized
to issue up to 60,000,000 shares of capital stock, par value $0.00001 per share, divided into two classes designated, respectively, common
stock and preferred stock. Of such shares authorized, 50,000,000 shares are designated as common stock, and 10,000,000 shares are designated
as preferred stock.
Common Stock
As of January 31, 2024, there are 11,765,290
shares of common stock outstanding that were held by 148 stockholders of record. As of
January 31, 2024, we also had outstanding options to purchase an aggregate of approximately 112,000 shares of our common stock,
and unvested, or vested but not yet settled, restricted stock units covering an aggregate of approximately 1,630,000 shares of common
stock.
Voting
Rights. The holders of our common stock are entitled to one vote for each share of record on all matters to be voted on by
stockholders. There is no cumulative voting with respect to the election of our directors or any other matter. Therefore, the holders
of more than 50% of the shares voted for the election of those directors can elect all of the directors.
Dividend
Rights. The holders of our common stock are entitled to receive dividends when, as and if declared by our board of directors
from funds legally available therefore, subject to restrictions on such ability to pay dividends, if any, set forth in the relevant terms
of any preferred stock as may then be outstanding. Cash dividends are at the sole discretion of our board of directors. Each holder of
our common stock is entitled to a pro rata share of cash distributions made to stockholders, including dividend payments.
Liquidation
Rights. In the event of our liquidation, dissolution or winding up, the holders of common stock are entitled to share ratably
in all assets remaining available for distribution to them after payment of our liabilities and after provision has been made for each
class of stock, if any, having any preference in relation to our common stock.
Other
Rights and Preferences. Holders of shares of our common stock have no conversion, preemptive or other subscription rights,
and there are no redemption provisions applicable to our common stock.
Preferred Stock
Our board of directors is authorized to issue
up to 10,000,000 shares of preferred stock in one or more series without stockholder approval. Our board of directors has discretion
to fix the number of shares in each series and to determine the designations and preferences, limitations and relative rights of each
series, including dividend rates, terms of redemption, liquidation preferences, sinking fund requirements, conversion rights, voting
rights, and whether the preferred stock can be issued as a share dividend with respect to another class or series of shares, all without
any vote or other action on the part of stockholders. This power is limited by applicable laws or regulations and may be delegated to
a committee of our board of directors.
The purpose of authorizing our board of directors
to issue preferred stock and determine its rights and preferences is to eliminate delays associated with a stockholder vote on specific
issuances. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions, future financings and
other corporate purposes, could have the effect of making it more difficult for a third-party to acquire, or could discourage a third-party
from seeking to acquire, a majority of our outstanding voting stock.
The Company previously issued 200,000 shares
of Series A Preferred Stock. On August 8, 2022, we filed a Certificate of Elimination for the purpose of eliminating the Series A
Convertible Preferred Stock, and as of the date of this prospectus, the Company had no shares of Preferred Stock outstanding.
Anti-Takeover Provisions of Delaware Law and
Our Charter Documents
We are governed by the DGCL. Certain provisions
of the DGCL and our certificate of incorporation and bylaws could make more difficult our acquisition by means of a tender offer, a proxy
contest or otherwise.
Vacancies on Board of Directors
Our certificate of incorporation provides that
any newly created directorships resulting from any increase in the authorized number of directors or any vacancies resulting from death,
resignation, retirement, disqualification, removal from office or other cause will be filled solely by the affirmative vote of a majority
of the remaining directors then in office, even though less than a quorum of the board.
Stockholder Meetings
Under our certificate of incorporation and subject
to the rights of holders of preferred stock, if any, only a majority of the members of the board of directors, the chairman of the board
of directors or the chief executive officer or the president may call special meetings of stockholders. This provision will make it more
difficult for stockholders to take action opposed by the board of directors.
Authorized but Unissued Shares
Our authorized but unissued shares of common
stock will be available for future issuance without stockholder approval. We may issue additional shares for a variety of corporate purposes,
including future public offerings to raise additional capital, corporate acquisitions and employee benefit plans. The existence of authorized
but unissued shares of common stock could render more difficult or discourage an attempt to obtain control of our company by means of
a proxy contest, tender offer, merger or otherwise.
The overall effect of the foregoing provisions
may be to deter a future tender offer. Our stockholders might view such an offer to be in their best interest should the offer include
a substantial premium over the market price of our common stock at that time. In addition, these provisions may have the effect of assisting
our management to retain its position and place it in a better position to resist changes that the stockholders may want to make if dissatisfied
with the conduct of our business.
Business Combinations
We are subject to Section 203 of the DGCL,
which regulates corporate acquisitions. In general, Section 203 prohibits a publicly held Delaware corporation from engaging in
a business combination with an interested stockholder for a period of three years following the date the person became an interested
stockholder, unless:
|
· |
The board of directors
approved the transaction in which the stockholder became an interested stockholder prior to the date the interested stockholder attained
such status; |
|
· |
Upon consummation of the
transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholders owned at least 85% of
the voting stock of the corporation outstanding at the time the transaction commenced, excluding shares owned by persons who are
directors and also officers and employee stock plans in which employee participants do not have the right to determine confidentially
whether shares held subject to the plan will be tendered in a tender or exchange offer; or |
|
· |
The business combination
is approved by a majority of the board of directors and by the affirmative vote of at least two-thirds of the outstanding voting
stock that is not owned by the interested stockholder. |
Listing
Our common stock is listed on the Nasdaq Capital
Market under the symbol “AEYE.”
Transfer Agent
The
transfer agent of our common stock is Equiniti Trust Company. Its address is 1100 Centre Pointe Curve, Suite 101, Mendota Heights,
MN 55120-4100, and its telephone number is 1-800-468-9716.
DESCRIPTION OF DEBT SECURITIES
This section describes the general terms and
provisions of our debt securities, which could be senior debt securities or subordinated debt securities. A prospectus supplement will
describe the specific terms of the debt securities offered through that prospectus supplement and any general terms outlined in this
section that will not apply to those debt securities.
The senior debt securities will be issued under
an indenture, referred to herein as the “senior indenture,” between us and the trustee named in the applicable prospectus
supplement. The subordinated debt securities will be issued under an indenture, referred to herein as the “subordinated indenture,”
between us and the trustee named in the applicable prospectus supplement.
We have summarized the anticipated material terms
and provisions of the senior and subordinated indentures in this section. We have also filed the forms of the indentures summarized in
this section as exhibits to the registration statement of which this prospectus is a part. You should read the applicable indenture for
additional information before you buy any debt securities.
General
The debt securities will be our direct unsecured
obligations. Neither of the indentures limits the amount of debt securities that we may issue. Both indentures permit us to issue debt
securities from time to time and debt securities issued under an indenture will be issued as part of a series that has been established
by us under such indenture.
The senior debt securities will be unsecured
and will rank equally with all of our other unsecured unsubordinated debt. The subordinated debt securities will be unsecured and will
rank equally with all of our other subordinated debt securities and, together with such other subordinated debt securities, will be subordinated
to all of our existing and future Senior Debt (as defined below). See “- Subordination” below.
The debt securities are our unsecured senior
or subordinated debt securities, as the case may be, but our assets include equity in our subsidiaries. As a result, our ability to make
payments on our debt securities may depend in part on our receipt of dividends, loan payments and other funds from our subsidiaries.
In addition, if any of our subsidiaries becomes insolvent, the direct creditors of that subsidiary will have a prior claim on its assets.
Our rights and the rights of our creditors, including your rights as an owner of our debt securities, will be subject to that prior claim,
unless we are also a direct creditor of that subsidiary. This subordination of creditors of a parent company to prior claims of creditors
of its subsidiaries is commonly referred to as structural subordination.
Unless otherwise specified in the applicable
prospectus supplement, we may, without the consent of the holders of a series of debt securities, issue additional debt securities of
that series having the same ranking and the same interest rate, maturity date and other terms (except for the price to public and issue
date) as such debt securities. Any such additional debt securities, together with the initial debt securities, will constitute a single
series of debt securities under the applicable indenture. No additional debt securities of a series may be issued if an event of default
under the applicable indenture has occurred and is continuing with respect to that series of debt securities.
A prospectus supplement relating to a series
of debt securities being offered will include specific terms relating to the offering. These terms will include some or all of the following:
|
· |
The title and type of the
debt securities; |
|
· |
Any limit on the total
principal amount of the debt securities of that series; |
|
· |
The price at which the debt securities
will be issued;
|
|
· |
The date or dates on which
the principal of and premium, if any, on the debt securities will be payable; |
|
· |
The maturity date or dates
of the debt securities or the method by which those dates can be determined; |
|
· |
If the debt securities will bear interest: |
| · | The
interest rate on the debt securities or the method by which the interest rate may be determined; |
| · | The
date from which interest will accrue; |
| · | The
record and interest payment dates for the debt securities; and |
| · | The
first interest payment date; |
|
· |
The place or places where; |
| · | We
can make payments on the debt securities; |
| · | The
debt securities can be surrendered for registration of transfer or exchange; and |
| · | Notices
and demands can be given to us relating to the debt securities and under the applicable indenture; |
|
· |
Any optional redemption
provisions that would permit us to elect redemption of the debt securities, or the holders of the debt securities to elect repayment
of the debt securities, before their final maturity; |
|
· |
Any sinking fund provisions
that would obligate us to redeem the debt securities before their final maturity; |
|
|
|
|
· |
Whether the debt securities
will be convertible and, if so, the terms and conditions of any such conversion; |
|
· |
If the debt securities
will be issued in bearer form, the terms and provisions contained in the bearer securities and in the applicable indenture specifically
relating to the bearer securities; |
|
· |
Whether all or part of
the debt securities will not be issued as permanent global securities and the extent to which the description of the book-entry procedures
described below under “- Book-Entry, Delivery and Form” will not apply to such global securities - a “global
security” is a debt security that we issue in accordance with the applicable indenture to represent all or part of a series
of debt securities; |
|
· |
Whether all or part of
the debt securities will be issued in whole or in part as temporary global securities and, if so, the depositary for those temporary
global securities and any special provisions dealing with the payment of interest and any terms relating to the ability to exchange
interests in a temporary global security for interests in a permanent global security or for definitive debt securities; |
|
· |
Whether any additional
amounts will be payable; |
|
· |
The denominations of the
debt securities, if other than $1,000 and any integral multiple thereof for registered securities, and $5,000 for bearer securities; |
|
· |
Any portion of the principal
amount of debt securities that would be payable upon acceleration; |
|
· |
The currency or currencies
in which the debt securities will be denominated and payable, if other than U.S. dollars and, if a composite currency, any special
provisions relating thereto; |
|
· |
Any circumstances under which the debt
securities may be paid in a currency other than the currency in which the debt securities are denominated and the manner in which
the exchange rate shall be determined; |
|
|
|
|
· |
Whether the provisions
described below under the heading “ - Defeasance” will not apply to the debt securities; |
|
· |
Any events of default that
will apply to the debt securities in addition to those contained in the applicable indenture; |
|
· |
Any additions or changes to the covenants
contained in the applicable indenture and the ability, if any, of the holders to waive our compliance with those additional or
changed covenants; |
|
|
|
|
· |
The identity
of the trustee, security registrar and paying agent for the debt securities; |
|
· |
Any material
tax implications of the debt securities; |
|
|
|
|
· |
Any special
provisions relating to the payment of any additional amounts on the debt securities; and |
|
· |
Any other
terms of the debt securities. |
When we use the term “holder” in
this prospectus with respect to a registered debt security, we mean the person in whose name such debt security is registered in the
security register.
Exchange and Transfer
At the option of the holder, any debt securities
of a series can be exchanged for other debt securities of that series so long as the other debt securities are denominated in authorized
denominations and have the same aggregate principal amount and same terms as the debt securities that were surrendered for exchange,
subject to limitations with respect to bearer securities in global form. The debt securities may be presented for registration of transfer,
duly endorsed or accompanied by a satisfactory written instrument of transfer, at the office or agency maintained by us for that purpose
in any place of payment that we may designate. However, holders of global securities may transfer and exchange global securities only
in the manner and to the extent set forth under “- Book-Entry, Delivery and Form” below. There will be no service charge
for any registration of transfer or exchange of the debt securities, but we may require holders to pay any tax or other governmental
charge payable in connection with a transfer or exchange of the debt securities. If the applicable prospectus supplement refers to any
office or agency, in addition to the security registrar, initially designated by us where holders can surrender the debt securities for
registration of transfer or exchange, we may at any time rescind the designation of any such office or agency or approve a change in
the location. However, we will be required to maintain an office or agency in each place of payment for that series.
We will not be required to:
|
· |
Issue,
register the transfer of or exchange debt securities to be redeemed for a period of 15 calendar days preceding the mailing of the
relevant notice of redemption; or |
|
· |
Register
the transfer of or exchange any registered debt security selected for redemption, in whole or in part, except the unredeemed or unpaid
portion of that registered debt security being redeemed in part. |
Interest and Principal Payments
Payments.
Holders may present debt securities for payment of principal, premium, if any, and interest, if any, register the transfer
of the debt securities and exchange the debt securities at the agency maintained by us for such purpose and identified in the applicable
prospectus supplement. We refer to the applicable trustee acting in the capacity of a paying agent for the debt securities as the “paying
agent.”
Any money that we pay to the paying agent for
the purpose of making payments on the debt securities and that remains unclaimed two years after the payments were due will, at our request,
be returned to us and after that time any holder of a debt security can only look to us for the payments on the debt security.
Recipients
of Payments. The paying agent will pay interest to the person in whose name the debt security is registered at the close
of business on the applicable record date. However, upon maturity, redemption or repayment, the paying agent will pay any interest due
to the person to whom it pays the principal of the debt security. The paying agent will make the payment on the date of maturity, redemption
or repayment, whether or not that date is an interest payment date. An “interest payment date” for any debt security means
a date on which, under the terms of that debt security, regularly scheduled interest is payable.
Book-Entry
Debt Securities. The paying agent will make payments of principal, premium, if any, and interest, if any, to the account
of The Depository Trust Company, referred to herein as “DTC,” or other depositary specified in the applicable prospectus
supplement, as holder of book-entry debt securities, by wire transfer of immediately available funds. The “depositary” means
the depositary for global securities issued under the applicable indenture and, unless provided otherwise in the applicable prospectus
supplement, means DTC. We expect that the depositary, upon receipt of any payment, will immediately credit its participants’ accounts
in amounts proportionate to their respective beneficial interests in the book-entry debt securities as shown on the records of the depositary.
We also expect that payments by the depositary’s participants to owners of beneficial interests in the book-entry debt securities
will be governed by standing customer instructions and customary practices and will be the responsibility of those participants.
Certificated
Debt Securities. Except as indicated below for payments of interest at maturity, redemption or repayment, the paying agent
will make payments of interest either:
|
· |
By check
mailed to the address of the person entitled to payment as shown on the security register; or |
|
· |
By wire
transfer to an account designated by a holder, if the holder has given written notice not later than 10 calendar days prior to the
applicable interest payment date. |
Redemption and Repayment of Debt Securities
Optional
Redemption by Us. If applicable, the prospectus supplement will indicate the terms of our option to redeem the debt securities.
We will send notice of redemption to each holder which, in the case of global securities, will be the depositary, as holder of the global
securities, by first-class mail, postage prepaid or, if to the depositary, in accordance with the depositary’s accepted notice
practices, at least 30 days and not more than 60 days prior to the date fixed for redemption, or within the redemption notice period
designated in the applicable prospectus supplement, to the address of each holder as that address appears upon the books maintained by
the security registrar.
A partial redemption of the debt securities may
be effected by such method as required by us, the registrar or the trustee, and may provide for the selection for redemption of a portion
of the principal amount of debt securities held by a holder equal to an authorized denomination. If we redeem less than all of the debt
securities and the debt securities are then held in book-entry form, the redemption will be made in accordance with the depositary’s
customary procedures. We have been advised that it is DTC’s practice to determine by the lot the amount of each participant in
the debt securities to be redeemed.
Unless we default in the payment of the redemption
price, on and after the redemption date interest will cease to accrue on the debt securities called for redemption.
Repayment
at Option of Holder. If applicable, the prospectus supplement relating to a series of debt securities will indicate that
the holder has the option to have us repay a debt security of that series on a date or dates specified prior to its stated maturity date.
Unless otherwise specified in the applicable prospectus supplement, the repayment price will be equal to 100% of the principal amount
of the debt security, together with accrued interest to the date of repayment.
Each holder desiring to exercise such holder’s
option for repayment shall surrender the debt security to be repaid, together with written notice of the exercise, at least 30 days but
not more than 45 days prior to the repayment date, at any of our offices or agencies in a place of payment, setting forth the principal
amount of the debt security, the principal amount of the debt security to be repaid, and in the case of partial repayment, shall specify
the denomination or denominations of the debt securities of the same series and the portion of the principal amount which is not to be
repaid.
Exercise of the repayment option by the holder
of a debt security will be irrevocable. The holder may exercise the repayment option for less than the entire principal amount of the
debt security but, in that event, the principal amount of the debt security remaining outstanding after repayment must be an authorized
denomination.
If a debt security is represented by a global
security, the depositary or the depositary’s nominee will be the holder of the debt security and therefore will be the only entity
that can exercise a right to repayment. In order to ensure that the depositary’s nominee will timely exercise a right to repayment
of a particular debt security, the beneficial owner of the debt security must instruct the broker or other direct or indirect participant
through which it holds an interest in the debt security to notify the depositary of its desire to exercise a right to repayment. Different
firms have different cut-off times for accepting instructions from their customers and, accordingly, each beneficial owner should consult
the broker or other direct or indirect participant through which it holds an interest in a debt security in order to ascertain the cut-off
time by which an instruction must be given in order for timely notice to be delivered to the depositary.
We may purchase debt securities at any price
in the open market or otherwise. Debt securities so purchased by us may, at our discretion, be held or resold or surrendered to the applicable
trustee for cancellation.
Denominations
Unless we state otherwise in the applicable prospectus
supplement, the debt securities may be issued in registered form in denominations of $1,000 each and integral multiples of $1,000 in
excess thereof, or in bearer form in denominations of $5,000.
Consolidation, Merger or Sale
Each of the indentures permits a consolidation
or merger between us and another entity, subject to certain conditions. They also permit the sale or transfer by us of all or substantially
all of our property and assets. These transactions are permitted if:
|
· |
The resulting
or acquiring entity, if other than us, is organized and existing under the laws of a domestic jurisdiction and assumes all of our
responsibilities and liabilities under the applicable indenture, including the payment of all amounts due on the debt securities
and performance of the covenants in the applicable indenture; and |
|
· |
Immediately
after giving effect to the transaction, no event of default under the applicable indenture exists. |
If we consolidate or merge with or into any other
entity or sell or lease all or substantially all of our assets according to the terms and conditions of the indentures, the resulting
or acquiring entity will be substituted for us in the indentures with the same effect as if it had been an original party to the indentures.
As a result, such successor entity may exercise our rights and powers under the indentures, in our name and, except in the case of a
lease of all or substantially all of our properties, we will be released from all our liabilities and obligations under the indentures
and under the debt securities.
Modification and Waiver
Under each of the indentures, certain of our
rights and obligations and certain of the rights of holders of the debt securities may be modified or amended with the consent of the
holders of at least a majority of the aggregate principal amount of the outstanding debt securities of all series of debt securities
affected by the modification or amendment, acting as one class. However, the following modifications and amendments will not be effective
against any holder without its consent:
|
· |
A change
in the stated maturity date of any payment of principal or interest; |
|
· |
A reduction
in payments due on the debt securities; |
|
· |
A change
in the place of payment or currency in which any payment on the debt securities is payable; |
|
· |
A limitation
of a holder’s right to sue us for the enforcement of payments due on the debt securities; |
|
· |
A reduction
in the percentage of outstanding debt securities required to consent to a modification or amendment of the applicable indenture or
required to consent to a waiver of compliance with certain provisions of the applicable indenture or certain defaults under the applicable
indenture; |
|
· |
A reduction
in the requirements contained in the applicable indenture for quorum or voting; |
|
· |
A limitation
of a holder’s right, if any, to repayment of debt securities at the holder’s option; and |
|
· |
A modification
of any of the foregoing requirements contained in the applicable indenture. |
Under each of the indentures, the holders of
at least a majority of the aggregate principal amount of the outstanding debt securities of all series of debt securities affected by
a particular covenant or condition, acting as one class, may, on behalf of all holders of such series of debt securities, waive compliance
by us with any covenant or condition contained in the applicable indenture unless we specify that such covenant or condition cannot be
so waived at the time we establish the series.
In addition, under each of the indentures, the
holders of a majority in aggregate principal amount of the outstanding debt securities of any series of debt securities may, on behalf
of all holders of that series, waive any past default under the applicable indenture, except:
|
· |
A default
in the payment of the principal of or any premium or interest on any debt securities of that series; or |
|
· |
A default
under any provision of the applicable indenture which itself cannot be modified or amended without the consent of the holders of
each outstanding debt security of that series. |
Events of Default
Unless otherwise specified in the applicable
prospectus supplement, an “event of default,” when used in the senior indenture or the subordinated indenture with respect
to any series of debt securities issued thereunder, means any of the following:
|
· |
Failure
to pay interest on any debt security of that series for 30 days after the payment is due; |
|
· |
Failure
to pay the principal of or any premium on any debt security of that series when due; |
|
· |
Failure
to deposit any sinking fund payment on debt securities of that series when due; |
|
· |
Failure
to perform any other covenant in the applicable indenture that applies to debt securities of that series for 90 days after we have
received written notice of the failure to perform in the manner specified in the applicable indenture; |
|
· |
Certain
events in bankruptcy, insolvency or reorganization; or |
|
· |
Any other
event of default that may be specified for the debt securities of that series when that series is created. |
If an event of default for any series of debt
securities occurs and continues, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities
of the series may declare the entire principal of all the debt securities of that series to be due and payable immediately. If such a
declaration occurs, the holders of a majority of the aggregate principal amount of the outstanding debt securities of that series can,
subject to conditions, rescind the declaration.
Each of the indentures requires us to file an
officers’ certificate with the applicable trustee each year that states, to the knowledge of the certifying officers, whether or
not any defaults exist under the terms of the applicable indenture. The applicable trustee may withhold notice to the holders of debt
securities of any default, except defaults in the payment of principal, premium, interest or any sinking fund installment, if it considers
the withholding of notice to be in the interest of the holders. For purposes of this paragraph, “default” means any event
which is, or after notice or lapse of time or both would become, an event of default under the applicable indenture with respect to the
debt securities of the applicable series.
Other than its duties in the case of a default,
a trustee is not obligated to exercise any of its rights or powers under the applicable indenture at the request, order or direction
of any holders, unless the holders offer that trustee security or indemnity satisfactory to the trustee. If satisfactory indemnification
is provided, then, subject to other rights of the trustee, the holders of a majority in principal amount of the outstanding debt securities
of any series may, with respect to the debt securities of that series, direct the time, method and place of:
|
· |
Conducting
any proceeding for any remedy available to the trustee; or |
|
· |
Exercising
any trust or power conferred upon the trustee. |
The holder of a debt security of any series will
have the right to begin any proceeding with respect to the applicable indenture or for any remedy only if:
|
· |
The holder
has previously given the trustee written notice of a continuing event of default with respect to that series; |
|
· |
The holders
of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made a written request of, and
offered reasonable indemnification to, the trustee to begin such proceeding; |
|
· |
The trustee
has not started such proceeding within 60 days after receiving the request; and |
|
· |
The trustee
has not received directions inconsistent with such request from the holders of a majority in aggregate principal amount of the outstanding
debt securities of that series during those 60 days. |
However, the holder of any debt security will
have an absolute right to receive payment of principal of and any premium and interest on the debt security when due and to institute
suit to enforce this payment, subject to limitations with respect to subordinated debt securities.
Defeasance
Defeasance
and Discharge. At the time that we establish a series of debt securities under the applicable indenture, we can provide
that the debt securities of that series are subject to the defeasance and discharge provisions of that indenture. Unless we specify otherwise
in the applicable prospectus supplement, the debt securities offered thereby will be subject to the defeasance and discharge provisions
of the applicable indenture, and we will be discharged from our obligations on the debt securities of that series if:
|
· |
We deposit
with the applicable trustee, in trust, sufficient money or, if the debt securities of that series are denominated and payable in
U.S. dollars only, Eligible Instruments, to pay the principal, any interest, any premium and any other sums due on the debt securities
of that series, such as sinking fund payments, on the dates the payments are due under the applicable indenture and the terms of
the debt securities; |
|
· |
We deliver
to the applicable trustee an opinion of counsel that states that the holders of the debt securities of that series will not recognize
income, gain or loss for federal income tax purposes as a result of the deposit and will be subject to federal income tax on the
same amounts and in the same manner and at the same times as would have been the case if no deposit, defeasance and discharge had
been made; and |
|
· |
If the
debt securities of that series are listed on any domestic or foreign securities exchange, the debt securities will not be delisted
as a result of the deposit. |
When we use the term “Eligible Instruments”
in this section, we mean monetary assets, money market instruments and securities that are payable in U.S. dollars only and essentially
risk free as to collection of principal and interest, including:
|
· |
Monetary
assets, money market instruments and securities that are payable in U.S. dollars only and essentially risk free as to collection
of principal and interest; or |
|
· |
Direct
obligations of the United States for the payment of which its full faith and credit is pledged, or obligations of a person controlled
or supervised by and acting as an agency or instrumentality of the United States if the timely payment of the obligation is unconditionally
guaranteed as a full faith and credit obligation by the United States. |
In the event that we deposit money and/or Eligible
Instruments in trust and discharge our obligations under a series of debt securities as described above, then:
|
· |
The applicable
indenture, including, in the case of subordinated debt securities, the subordination provisions contained in the subordinated indenture,
will no longer apply to the debt securities of that series; however, certain obligations to compensate, reimburse and indemnify the
trustee, to register the transfer and exchange of debt securities, to replace lost, stolen or mutilated debt securities, to
maintain paying agencies and the trust funds and to pay additional amounts, if any, required as a result of U.S. withholding taxes
imposed on payments to non-U.S. persons will continue to apply; and |
|
· |
Holders
of debt securities of that series can only look to the trust fund for payment of principal, any premium and any interest on the debt
securities of that series. |
Defeasance
of Certain Covenants and Certain Events of Default. At the time that we establish a series of debt securities under the
applicable indenture, we can provide that the debt securities of that series are subject to the covenant defeasance provisions of that
indenture. Unless we specify otherwise in the applicable prospectus supplement, the debt securities offered thereby will be subject to
the covenant defeasance provisions of the applicable indenture, and if we make the deposit and deliver the opinion of counsel described
above in this section under the heading “- Defeasance and Discharge,” we will not have to comply with any covenant we designate
when we establish the series of debt securities. In the event of a covenant defeasance, our obligations under the applicable indenture
and the debt securities, other than with respect to the covenants specifically designated upon establishing the debt securities, will
remain in effect.
If we exercise our option not to comply with
certain covenants as described above and the debt securities of the series become immediately due and payable because an event of default
has occurred, other than as a result of an event of default specifically relating to any of such covenants, the amount of money and/or
Eligible Instruments on deposit with the applicable trustee will be sufficient to pay the principal, any interest, any premium and any
other sums, due on the debt securities of that series, such as sinking fund payments, on the date the payments are due under the applicable
indenture and the terms of the debt securities, but may not be sufficient to pay amounts due at the time of acceleration. However, we
would remain liable for the balance of the payments.
Subordination
The subordinated debt securities will be subordinate
to all of our existing and future Senior Debt, as defined below. Our “Senior Debt” includes the senior debt securities and
means the principal of, premium, if any, and interest on, rent under, and any other amounts payable on or in or in respect of any of
our indebtedness (including, without limitation, any obligations in respect of such indebtedness and any interest accruing after the
filing of a petition by or against us under any bankruptcy law, whether or not allowed as a claim after such filing in any proceeding
under such bankruptcy law), whether outstanding on the date of the senior indenture or thereafter created, incurred, assumed, guaranteed
or in effect guaranteed by us (including all deferrals, renewals, extensions, refinancings or refundings of, or amendments, modifications
or supplements to the foregoing). However, Senior Debt does not include:
|
· |
Any liability
for federal, state, local or other taxes owed or owing by us; |
|
· |
Our indebtedness
to any of our subsidiaries; |
|
· |
Our trade
payables and accrued expenses (including, without limitation, accrued compensation) for goods, services or materials purchased or
provided in the ordinary course of business; and |
|
· |
Any particular
indebtedness in which the instrument creating or evidencing the same expressly provides that such indebtedness shall not be senior
in right of payment to, or is pari passu with, or is subordinated or junior to, the subordinated debt securities. |
If certain events in bankruptcy, insolvency or
reorganization occur, we will first pay all Senior Debt, including any interest accrued after the events occur, in full before we make
any payment or distribution, whether in cash, securities or other property, on account of the principal of or interest on the subordinated
debt securities. In such an event, we will pay or deliver directly to the holders of Senior Debt any payment or distribution otherwise
payable or deliverable to holders of the subordinated debt securities. We will make the payments to the holders of Senior Debt according
to priorities existing among those holders until we have paid all Senior Debt, including accrued interest, in full. Notwithstanding the
subordination provisions discussed in this paragraph, we may make payments or distributions on the subordinated debt securities so long
as:
|
· |
The payments
or distributions consist of securities issued by us or another company in connection with a plan of dissolution, reorganization,
readjustment or winding up; and |
|
· |
Payment
on those securities is subordinate to outstanding Senior Debt and any securities issued with respect to Senior Debt under such plan
of dissolution, reorganization, readjustment or winding up at least to the same extent provided in the subordination provisions of
the subordinated debt securities. |
If such events in bankruptcy, insolvency or reorganization
occur, after we have paid in full all amounts owed on Senior Debt:
|
· |
The holders
of subordinated debt securities, |
|
· |
Together
with the holders of any of our other obligations ranking equal with those subordinated debt securities, |
will be entitled to receive from our remaining
assets any principal, premium or interest due at that time on the subordinated debt securities and such other obligations before we make
any payment or other distribution on account of any of our capital stock or obligations ranking junior to those subordinated debt securities.
If we violate the subordinated indenture by making
a payment or distribution to holders of the subordinated debt securities before we have paid all of the Senior Debt in full, then such
holders of the subordinated debt securities will be deemed to have received the payments or distributions in trust for the benefit of,
and will have to pay or transfer the payments or distributions to, the holders of the Senior Debt outstanding at the time. The payment
or transfer to the holders of the Senior Debt will be made according to the priorities existing among those holders. Notwithstanding
the subordination provisions discussed in this paragraph, holders of subordinated debt securities will not be required to pay, or transfer
payments or distributions to, holders of Senior Debt so long as:
|
· |
The payments
or distributions consist of securities issued by us or another company in connection with a plan of reorganization or readjustment;
and |
|
· |
Payment
on those securities is subordinated to outstanding Senior Debt and any securities issued with respect to Senior Debt under such plan
of reorganization or readjustment at least to the same extent provided in the subordination provisions of those subordinated debt
securities. |
|
· |
Because
of the subordination, if we become insolvent, holders of Senior Debt may receive more, ratably, and holders of the subordinated debt
securities having a claim pursuant to those securities may receive less, ratably, than our other creditors. |
We may modify or amend the subordinated indenture
as provided under “- Modification and Waiver” above. However, the modification or amendment may not, without the consent
of the holders of all Senior Debt outstanding, modify any of the provisions of the subordinated indenture relating to the subordination
of the subordinated debt securities in a manner that would adversely affect the holders of Senior Debt.
Payment of Additional Amounts
Unless we specify otherwise in the applicable
prospectus supplement, we will not pay any additional amounts on the debt securities offered thereby to compensate any beneficial owner
for any United States tax withheld from payments on such debt securities.
Book-Entry, Delivery and Form
We have obtained the information in this section
concerning DTC, Clearstream Banking S.A., or “Clearstream,” and Euroclear Bank S.A./N.V., as operator of the Euroclear System,
or “Euroclear,” and the book-entry system and procedures from sources that we believe to be reliable, but we take no responsibility
for the accuracy of this information. This information could change at any time. In addition, we have no control over DTC, Clearstream
or Euroclear, or any of their participants, and therefore we take no responsibility for their activities.
Unless otherwise specified in the applicable
prospectus supplement, the debt securities will be issued as fully registered global securities that will be deposited with, or on behalf
of, DTC and registered, at the request of DTC, in the name of Cede & Co. Beneficial interests in the global securities will
be represented through book-entry accounts of financial institutions acting on behalf of beneficial owners as direct or indirect participants
in DTC. The direct and indirect participants will remain responsible for keeping account of their holdings on behalf of their customers.
Investors may elect to hold their interests in the global securities through either DTC (in the United States) or (in Europe) through
Clearstream or through Euroclear. Investors may hold their interests in the global securities directly if they are participants of such
systems, or indirectly through organizations that are participants in these systems. Interests held through Clearstream and Euroclear
will be recorded on DTC’s books as being held by the U.S. Depositary for each of Clearstream and Euroclear (the “U.S. Depositaries”),
which U.S. Depositaries will, in turn, hold interests on behalf of their participants’ customers’ securities accounts. Unless
otherwise specified in the applicable prospectus supplement, beneficial interests in the global securities will be held in denominations
of $1,000 and multiples of $1,000 in excess thereof. Except as set forth below, the global securities may be transferred, in whole and
not in part, only to another nominee of DTC or to a successor of DTC or its nominee.
Debt securities represented by a global security
can be exchanged for definitive securities in registered form only if:
|
· |
DTC notifies
us that it is unwilling or unable to continue as depositary for that global security and we do not appoint a qualified successor
depositary within 90 days after receiving that notice; |
|
· |
At any
time DTC ceases to be a clearing agency registered under the Exchange Act and we do not appoint a successor depositary within 90
days after becoming aware that DTC has ceased to be registered as a clearing agency; |
|
· |
We in
our sole discretion determine that such global security will be exchangeable for definitive securities in registered Form or
elect to terminate the book-entry system through DTC and notify the applicable trustee of our decision; or |
|
· |
An event
of default with respect to the debt securities represented by that global security has occurred and is continuing. |
A global security that can be exchanged as described
in the preceding sentence will be exchanged for definitive securities issued in authorized denominations in registered form for the same
aggregate amount. The definitive securities will be registered in the names of the owners of the beneficial interests in the global security
as directed by DTC.
We will make principal and interest payments
on all debt securities represented by a global security to the paying agent which in turn will make payment to DTC or its nominee, as
the case may be, as the sole registered owner and the sole holder of the debt securities represented by a global security for all purposes
under the applicable indenture. Accordingly, we, the applicable trustee and any paying agent will have no responsibility or liability
for:
|
· |
Any aspect
of DTC’s records relating to, or payments made on account of, beneficial ownership interests in a debt security represented
by a global security; |
|
· |
Any other
aspect of the relationship between DTC and its participants or the relationship between those participants and the owners of beneficial
interests in a global security held through those participants; or |
|
· |
The maintenance,
supervision or review of any of DTC’s records relating to those beneficial ownership interests. |
We understand that DTC’s current practice
is to credit direct participants’ accounts on each payment date with payments in amounts proportionate to their respective beneficial
interests in the principal amount of such global security as shown on DTC’s records, upon DTC’s receipt of funds and corresponding
detail information. The underwriters or agents for the debt securities represented by a global security will initially designate the
accounts to be credited. Payments by participants to owners of beneficial interests in a global security will be governed by standing
instructions and customary practices, as is the case with securities held for customer accounts registered in “street name,”
and will be the sole responsibility of those participants, and not of DTC or its nominee, the trustee, any agent of ours, or us, subject
to any statutory or regulatory requirements. Book-entry notes may be more difficult to pledge because of the lack of a physical note.
DTC
So long as DTC or its nominee is the registered
owner of a global security, DTC or its nominee, as the case may be, will be considered the sole owner and holder of the debt securities
represented by that global security for all purposes of the debt securities. Owners of beneficial interests in the debt securities will
not be entitled to have debt securities registered in their names, will not receive or be entitled to receive physical delivery of the
debt securities in definitive form and will not be considered owners or holders of debt securities under the applicable indenture. Accordingly,
each person owning a beneficial interest in a global security must rely on the procedures of DTC and, if that person is not a DTC participant,
on the procedures of the participant through which that person owns its interest, to exercise any rights of a holder of debt securities.
The laws of some jurisdictions may require that certain purchasers of securities take physical delivery of the securities in certificated
form. These laws may impair the ability to transfer beneficial interests in a global security. Beneficial owners may experience delays
in receiving distributions on their debt securities since distributions will initially be made to DTC and must then be transferred through
the chain of intermediaries to the beneficial owner’s account.
We understand that, under existing industry practices,
if we request holders to take any action, or if an owner of a beneficial interest in a global security desires to take any action which
a holder is entitled to take under the applicable indenture, then DTC would authorize the participants holding the relevant beneficial
interests to take that action and those participants would authorize the beneficial owners owning through such participants to take that
action or would otherwise act upon the instructions of beneficial owners owning through them.
Beneficial interests in a global security will
be shown on, and transfers of those ownership interests will be effected only through, records maintained by DTC and its participants
for that global security. The conveyance of notices and other communications by DTC to its participants and by its participants to owners
of beneficial interests in the debt securities will be governed by arrangements among them, subject to any statutory or regulatory requirements
in effect.
We understand that DTC is a limited-purpose trust
company organized under the New York Banking Law, a “banking organization” within the meaning of the New York Banking Law,
a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform Commercial Code
and a “clearing agency” registered under the Exchange Act. DTC is a wholly owned subsidiary of The Depository Trust &
Clearing Corporation (“DTCC”). DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income
Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries.
DTC holds the securities of its participants
and facilitates the clearance and settlement of securities transactions among its participants in such securities through electronic
book-entry changes in accounts of its participants. The electronic book-entry system eliminates the need for physical certificates. DTC’s
participants include securities brokers and dealers, including underwriters, banks, trust companies, clearing corporations and certain
other organizations, some of which, and/or their representatives, own DTCC. Banks, brokers, dealers, trust companies and others that
clear through or maintain a custodial relationship with a participant, either directly or indirectly, also have access to DTC’s
book-entry system. The rules applicable to DTC and its participants are on file with the SEC.
The above information with respect to DTC has
been provided for informational purposes only and is not intended to serve as a representation, warranty or contract modification of
any kind.
Clearstream
We understand that Clearstream was incorporated
under the laws of Luxembourg as an international clearing system. Clearstream holds securities for its participating organizations, or
“Clearstream Participants,” and facilitates the clearance and settlement of securities transactions between Clearstream Participants
through electronic book-entry changes in accounts of Clearstream Participants, thereby eliminating the need for physical movement of
certificates. Clearstream provides to Clearstream Participants, among other things, services for safekeeping, administration, clearance
and settlement of internationally traded securities and securities lending and borrowing. Clearstream interfaces with domestic securities
markets in several countries. As a professional depositary, Clearstream is subject to regulation by the Luxembourg Commission for the
Supervision of the Financial Sector (Commission de Surveillance du Secteur Financier). Clearstream Participants are recognized
financial institutions around the world, including underwriters, securities brokers and dealers, banks, trust companies, clearing corporations
and certain other organizations. Clearstream’s U.S. Participants are limited to securities brokers and dealers and banks. Indirect
access to Clearstream is also available to others, such as banks, brokers, dealers and trust companies that clear through or maintain
a custodial relationship with a Clearstream Participant either directly or indirectly.
Distributions with respect to debt securities
held beneficially through Clearstream will be credited to cash accounts of Clearstream Participants in accordance with its rules and
procedures, to the extent received by the U.S. Depositary for Clearstream.
Euroclear
We understand that Euroclear was created in 1968
to hold securities for participants of Euroclear, or “Euroclear Participants,” and to clear and settle transactions between
Euroclear Participants through simultaneous electronic book-entry delivery against payment, thereby eliminating the need for physical
movement of certificates and any risk from lack of simultaneous transfers of securities and cash. Euroclear performs various other services,
including securities lending and borrowing and interacts with domestic markets in several countries. Euroclear is operated by Euroclear
Bank S.A./N.V., or the “Euroclear Operator,” under contract with Euroclear plc, a U.K. corporation. All operations are conducted
by the Euroclear Operator, and all Euroclear securities clearance accounts and Euroclear cash accounts are accounts with the Euroclear
Operator, not Euroclear plc. Euroclear plc establishes policy for Euroclear on behalf of Euroclear Participants. Euroclear Participants
include banks, including central banks, securities brokers and dealers and other professional financial intermediaries. Indirect access
to Euroclear is also available to other firms that clear through or maintain a custodial relationship with a Euroclear Participant, either
directly or indirectly. Euroclear is an indirect participant in DTC.
The Euroclear Operator is a Belgian bank. As
such it is regulated by the Belgian Banking and Finance Commission and the National Bank of Belgium.
Securities clearance accounts and cash accounts
with the Euroclear Operator are governed by the Terms and Conditions Governing Use of Euroclear and the related Operating Procedures
of the Euroclear System, and applicable Belgian law, which we will refer to herein as the “Terms and Conditions.” The Terms
and Conditions govern transfers of securities and cash within Euroclear, withdrawals of securities and cash from Euroclear, and receipts
of payments with respect to securities in Euroclear. All securities in Euroclear are held on a fungible basis without attribution of
specific certificates to specific securities clearance accounts. The Euroclear Operator acts under the Terms and Conditions only on behalf
of Euroclear Participants and has no record of or relationship with persons holding through Euroclear Participants.
Distributions with respect to debt securities
held beneficially through Euroclear will be credited to the cash accounts of Euroclear Participants in accordance with the Terms and
Conditions, to the extent received by the Euroclear Operator.
We further understand that investors that acquire,
hold and transfer interests in the debt securities by book-entry through accounts with the Euroclear Operator or any other securities
intermediary are subject to the laws and contractual provisions governing their relationship with their intermediary, as well as the
laws and contractual provisions governing the relationship between such an intermediary and each other intermediary, if any, standing
between themselves and the global securities.
Global Clearance and Settlement Procedures
Unless otherwise specified in the applicable
prospectus supplement, initial settlement for the debt securities will be made in immediately available funds. Secondary market trading
between DTC participants will occur in the ordinary way in accordance with DTC rules and will be settled in immediately available
funds using DTC’s Same-Day Funds Settlement System. Secondary market trading between Clearstream Participants and/or Euroclear
Participants will occur in the ordinary way in accordance with the applicable rules and operating procedures of Clearstream and
Euroclear and will be settled using the procedures applicable to conventional eurobonds in immediately available funds.
Cross-market transfers between persons holding
directly or indirectly through DTC, on the one hand, and directly or indirectly through Clearstream Participants or Euroclear Participants,
on the other, will be effected through DTC in accordance with DTC rules on behalf of the relevant European international clearing
system by its U.S. Depositary; however, such cross-market transactions will require delivery of instructions to the relevant European
international clearing system by the counterparty in such system in accordance with its rules and procedures and within its established
deadlines (European time). The relevant European international clearing system will, if the transaction meets its settlement requirements,
deliver instructions to its U.S. Depositary to take action to effect final settlement on its behalf by delivering or receiving debt securities
through DTC, and making or receiving payment in accordance with normal procedures for same-day funds settlement applicable to DTC. Clearstream
Participants and Euroclear Participants may not deliver instructions directly to their respective U.S. Depositaries.
Because of time-zone differences, credits of
debt securities received through Clearstream or Euroclear as a result of a transaction with a DTC participant will be made during subsequent
securities settlement processing and dated the business day following the DTC settlement date. Such credits or any transactions in such
debt securities settled during such processing will be reported to the relevant Euroclear Participants or Clearstream Participants on
such business day. Cash received in Clearstream or Euroclear as a result of sales of debt securities by or through a Clearstream Participant
or a Euroclear Participant to a DTC participant will be received with value on the DTC settlement date but will be available in the relevant
Clearstream or Euroclear cash account only as of the business day following settlement in DTC.
If the debt securities are cleared only through
Euroclear and Clearstream (and not DTC), you will be able to make and receive through Euroclear and Clearstream payments, deliveries,
transfers, exchanges, notices, and other transactions involving any securities held through those systems only on days when those systems
are open for business. Those systems may not be open for business on days when banks, brokers, and other institutions are open for business
in the United States. In addition, because of time-zone differences, U.S. investors who hold their interests in the securities through
these systems and wish to transfer their interests, or to receive or make a payment or delivery or exercise any other right with respect
to their interests, on a particular day may find that the transaction will not be effected until the next business day in Luxembourg
or Brussels, as applicable. Thus, U.S. investors who wish to exercise rights that expire on a particular day may need to act before the
expiration date.
Although DTC, Clearstream and Euroclear have
agreed to the foregoing procedures in order to facilitate transfers of debt securities among participants of DTC, Clearstream and Euroclear,
they are under no obligation to perform or continue to perform such procedures and such procedures may be modified or discontinued at
any time. Neither we nor any paying agent will have any responsibility for the performance by DTC, Euroclear or Clearstream or their
respective direct or indirect participants of their obligations under the rules and procedures governing their operations.
Conversion and Exchange
If any offered debt securities are convertible
at the option of the holders or exchangeable at our option, the prospectus supplement relating to those debt securities will include
the terms and conditions governing any conversions and exchanges.
Governing Law
The indentures are, and the debt securities will
be, governed by and will be construed in accordance with New York law.
DESCRIPTION OF STOCK PURCHASE CONTRACTS
We may issue stock purchase contracts, including
contracts obligating holders to purchase from us and contracts obligating us to sell to the holders, a specified number of shares of
common stock or other securities at a future date or dates. The price per share of the securities and the number of shares of the securities
may be fixed at the time the stock purchase contracts are issued or may be determined by reference to a specific formula set forth in
the stock purchase contracts. The stock purchase contracts may be issued separately or as part of units consisting of a stock purchase
contract and warrants or other securities or debt obligations of third parties, including U.S. treasury securities, securing the holders’
obligations to purchase the securities under the stock purchase contracts. The stock purchase contracts may require us to make periodic
payments to the holders of the stock purchase contracts or vice versa, and such payments may be unsecured or prefunded on some basis.
They may also require holders to secure their obligations thereunder in a specified manner and in certain circumstances we may deliver
newly issued prepaid stock purchase contracts, or prepaid securities, upon release to a holder of any collateral securing such holder’s
obligations under the original stock purchase contract.
The stock purchase contracts, and, if applicable,
collateral or depositary arrangements will be filed with the SEC in connection with the offering of stock purchase contracts. The prospectus
supplement and any incorporated documents relating to any stock purchase contracts that we offer will include specific terms relating
to the offering, including, among other matters:
|
· |
If applicable,
a discussion of material U.S. federal income tax considerations; and |
|
· |
Any other
information we think important about the stock purchase contracts. |
DESCRIPTION OF WARRANTS
We may issue warrants
for the purchase of shares of our common stock or preferred stock or of debt securities. We may issue warrants independently or together
with other securities, and the warrants may be attached to or separate from any offered securities. Each series of warrants will be issued
under a separate warrant agreement to be entered into between us and the investors or a warrant agent. The following summary of material
provisions of the warrants and warrant agreements are subject to, and qualified in their entirety by reference to, all the provisions
of the warrant agreement and warrant certificate applicable to a particular series of warrants. The terms of any warrants offered under
a prospectus supplement may differ from the terms described below. We urge you to read the applicable prospectus supplement and any related
free writing prospectus, as well as the complete warrant agreements and warrant certificates that contain the terms of the warrants.
The particular terms of any issue of warrants
will be described in the prospectus supplement relating to the issue. Those terms may include:
|
· |
The number
of shares of common stock or preferred stock purchasable upon the exercise of warrants to purchase such shares and the price at which
such number of shares may be purchased upon such exercise; |
|
· |
The designation,
stated value and terms (including, without limitation, liquidation, dividend, conversion and voting rights) of the series of preferred
stock purchasable upon exercise of warrants to purchase preferred stock; |
|
· |
The principal
amount of debt securities that may be purchased upon exercise of a debt warrant and the exercise price for the warrants, which may
be payable in cash, securities or other property; |
|
· |
The date,
if any, on and after which the warrants and the related debt securities, preferred stock or common stock will be separately transferable; |
|
· |
The terms
of any rights to redeem or call the warrants; |
|
· |
The date
on which the right to exercise the warrants will commence and the date on which the right will expire; |
|
· |
A discussion
of certain United States federal income tax consequences applicable to the warrants; and |
|
· |
Any additional
terms of the warrants, including terms, procedures, and limitations relating to the exchange, exercise and settlement of the warrants. |
Holders of equity warrants will not be entitled
to:
|
· |
Vote,
consent or receive dividends; |
|
· |
Receive
notice as stockholders with respect to any meeting of stockholders for the election of our directors or any other matter; or |
|
· |
Exercise
any rights as stockholders of the Company. |
Each warrant will entitle its holder to purchase
the principal amount of debt securities or the number of shares of preferred stock or common stock at the exercise price set forth in,
or calculable as set forth in, the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement,
holders of the warrants may exercise the warrants at any time up to the specified time on the expiration date that we set forth in the
applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void.
A holder of warrant certificates may exchange
them for new warrant certificates of different denominations, present them for registration of transfer and exercise them at the corporate
trust office of the warrant agent or any other office indicated in the applicable prospectus supplement. Until any warrants to purchase
debt securities are exercised, the holder of the warrants will not have any rights of holders of the debt securities that can be purchased
upon exercise, including any rights to receive payments of principal, premium or interest on the underlying debt securities or to enforce
covenants in the applicable indenture. Until any warrants to purchase common stock or preferred stock are exercised, the holders of the
warrants will not have any rights of holders of the underlying common stock or preferred stock, including any rights to receive dividends
or payments upon any liquidation, dissolution or winding up on the common stock or preferred stock, if any.
DESCRIPTION OF RIGHTS
We may issue rights to purchase our common stock.
The rights may or may not be transferable by the persons purchasing or receiving the rights. In connection with any rights offering,
we may enter into a standby underwriting 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 for after such rights offering. Each series of rights will
be issued under a separate rights agent agreement to be entered into between us and one or more banks, trust companies or other financial
institutions, as rights agent, that we will name in the applicable prospectus supplement. The rights agent will act solely as our agent
in connection with the rights and will not assume any obligation or relationship of agency or trust for or with any holders of rights
certificates or beneficial owners of rights.
The prospectus supplement and any incorporated
documents relating to any rights that we offer will include specific terms relating to the offering, including, among other matters:
| · | The
date of determining the security holders entitled to the rights distribution; |
| · | The
aggregate number of rights issued and the aggregate number of common stock purchasable upon
exercise of the rights; |
| · | The
conditions to completion of the rights offering; |
| · | The
date on which the right to exercise the rights will commence and the date on which the rights
will expire; and |
| · | A
discussion of certain United States federal income tax consequences applicable to the rights
offering. |
Each right would entitle the holder of the rights
to purchase for cash common stock at the exercise price set forth in the applicable prospectus supplement. Rights may be exercised at
any time up to the close of business on the expiration date for the rights provided in the applicable prospectus supplement. After the
close of business on the expiration date, all unexercised rights will become void.
If less than all of the rights issued in any
rights offering are exercised, we may offer any unsubscribed securities directly to persons other than our security holders, to or through
agents, underwriters or dealers or through a combination of such methods, including pursuant to standby arrangements, as described in
the applicable prospectus supplement.
DESCRIPTION OF UNITS
We may issue units consisting of any combination
of the other types of securities offered under this prospectus in one or more series. We may evidence each series of units by unit certificates
that we will issue under a separate agreement. We may enter into unit agreements with a unit agent. Each unit agent will be a bank or
trust company that we select. We will indicate the name and address of the unit agent in the applicable prospectus supplement relating
to a particular series of units.
The following description, together with the
additional information included in any applicable prospectus supplement, summarizes the general features of the units that we may offer
under this prospectus. You should read any prospectus supplement and any free writing prospectus that we may authorize to be provided
to you related to the series of units being offered, as well as the complete unit agreements that contain the terms of the units. Specific
unit agreements will contain additional important terms and provisions and we will file as an exhibit to the registration statement of
which this prospectus is a part, or will incorporate by reference from another report that we file with the SEC, the form of each unit
agreement relating to units offered under this prospectus.
If we offer any units, certain terms of that
series of units will be described in the applicable prospectus supplement, including, without limitation, the following, as applicable:
|
· |
The title
of the series of units; |
|
· |
Identification
and description of the separate constituent securities comprising the units; |
|
· |
The price
or prices at which the units will be issued; |
|
· |
The date,
if any, on and after which the constituent securities comprising the units will be separately transferable; |
|
· |
A discussion
of certain United States federal income tax considerations applicable to the units; and |
|
· |
Any other
terms of the units and their constituent securities. |
SELLING STOCKHOLDERS
The selling stockholders
listed in the table below, and their respective transferees, distributees, pledgees, donees, assignees or other successors, may from
time to time offer and sell any or all of the shares of common stock set forth below pursuant to this prospectus. Except as may be set
forth in any accompanying prospectus supplement, we will pay all of the expenses in connection with the registration and the sale of
the shares, other than selling commissions and the fees and expenses of counsel and other advisors to the selling stockholders. We will
not receive any proceeds from the sale of shares by the selling stockholders. Information concerning the selling stockholders may change
from time to time, and any changed information will be set forth if and when required in the applicable prospectus supplements.
The following table sets forth, based on written
representations from the selling stockholders, certain information regarding the beneficial ownership of our common stock by the selling
stockholders and the shares of common stock being offered by the selling stockholders. The applicable percentage ownership of common
stock is based on 11,765,290 shares of common stock outstanding as of January 31, 2024, and excludes, as of such date:
|
· |
Approximately 204,000 additional shares of common
stock reserved and available for future issuances under our equity compensation plan; |
|
|
|
|
· |
Approximately 112,000 shares of common stock issuable
upon the exercise of stock options, at a weighted average exercise price of $10.17 per share; and |
|
|
|
|
· |
Unvested,
or vested but not yet settled, restricted stock units covering an aggregate of approximately 1,630,000 shares of common stock. |
Information
with respect to shares of common stock owned beneficially after the offering assumes the sale of all of the shares of common stock offered
and no other purchases or sales of our common stock. The holders may offer and sell some, all or none of their shares of common
stock. Because the number of shares the selling shareholders may offer and sell is not presently known, we cannot estimate the
number of shares that will be held by the selling shareholders after completion of this offering. This table, however, presents the maximum
number of common stock that the selling shareholders may offer pursuant to this prospectus and the number of common stock that would
be beneficially owned after the sale of the maximum number of common stock by the selling shareholders.
We have determined beneficial
ownership in accordance with the rules of the SEC. Except as indicated by the footnotes below, we believe, based on the information
furnished to us, that the selling stockholders have sole voting and investment power with respect to all shares of common stock that
they beneficially own, subject to applicable community property laws. Except as otherwise described below, based on the information provided
to us by the selling stockholders, no selling stockholder is a broker-dealer or an affiliate of a broker-dealer.
| |
Shares
Beneficially Owned | | |
Maximum Number
of Shares That
May be
Offered | | |
Shares
Beneficially Owned after this Offering | |
Name
of Selling Stockholder | |
Shares | | |
%
of Ownership | | |
Pursuant to this Prospectus | | |
Shares | | |
%
of Ownership | |
David Moradi(1) | |
| 3,462,091 | | |
| 29.4 | % | |
| 2,000,000 | | |
| 1,462,091 | | |
| 12.4 | % |
Dr. Carr Bettis(2) | |
| 800,240 | | |
| 6.8 | % | |
| 500,000 | | |
| 300,240 | | |
| 2.6 | % |
TurnMark Partners, L.P.(3) | |
| 320,000 | | |
| 2.7 | % | |
| 320,000 | | |
| 0 | | |
| 0 | % |
|
(1) |
Comprised of (i) 563,758
shares of common stock, and (ii) 2,898,333 shares of common stock held by Sero Capital LLC, an entity for which Mr. Moradi
is deemed the beneficial owner. Excludes 22,560 RSUs that are vested, but are not scheduled to be settled within 60 days after
January 31, 2024. The address for Mr. Moradi is C/O AudioEye, Inc., 5210 E. Williams Circle, Suite 750, Tucson,
AZ 85711. |
|
(2) |
Comprised of (i) 349,265
shares of common stock; (ii) 432,375 shares of common stock held by CSB IV US Holdings LLC, an entity for which Dr. Bettis
is deemed a beneficial owner, and (iii) 18,600 shares of common stock held by Carr Bettis IRA, an account for which Dr. Bettis
is deemed the beneficial owner. Excludes 97,340 RSUs that are vested, but are not scheduled to be settled within 60 days after
January 31, 2024. The address for Dr. Bettis is C/O AudioEye, Inc., 5210 E. Williams Circle, Suite 750, Tucson,
AZ 85711. |
|
(3) |
Comprised of 320,000 shares
of common stock owned by TurnMark Partners, L.P. Excludes (i) 2,304 shares of common stock beneficially owned by Mr. Tahir,
who is deemed the beneficial owner of the shares owned by TurnMark Partners, L.P., and (ii) 94,003 RSUs held by Mr. Tahir
that are vested, but are not scheduled to be settled within 60 days after January 31, 2024. The address for TurnMark
Partners, L.P. is 6754 Bernal Ave, Suite 740-404, Pleasanton, CA 94566. |
Past
and Current Relationships with Selling Shareholders
Mr. Moradi served
as Chief Executive Officer (“CEO”) since January 2022, served as Interim Chief Executive Officer and Chief Strategy
Officer from August 2020 to January 2022, and has served as a director since November 2019. He is also the Chief Executive
Officer and the beneficial owner of Sero Capital, LLC, a large shareholder of the Company.
Dr. Bettis has
served as a director since December 2012 and previously served as a director from July 2007 to April 2010. Dr. Bettis
has served as Executive Chairman/Chairman of the Board since March 2015. Dr. Bettis also served as our principal financial
officer and principal accounting officer from May 2021 until August 2021.
TurnMark Capital LLC,
a private investment firm of which Mr. Tahir is the co-founder, managing member and partial owner, is the general partner of TurnMark
Partners, L.P. Mr. Tahir has served as a director since November 2019 and the lead independent director since July 2020.
PLAN OF DISTRIBUTION
We may sell securities in any one or more of
the following ways from time to time: (i) to or through agents; (ii) to or through underwriters (including through syndicates
or acting alone for resale); (iii) to or through brokers or dealers; (iv) directly by us to purchasers, including through a
specific bidding, auction or other process; (v) upon the exercise of subscription rights that may be distributed to our shareholders;
(vi) through a combination of any of these methods of sale; or (vii) by any other method permitted by law.
The selling shareholders may from time to time
sell all or a portion of the common stock beneficially owned by them and offered hereby directly or through one or more underwriters,
broker-dealers, or agents. If the common stock is sold through underwriters or broker-dealers, the selling shareholders will be responsible
for discounts or commissions payable to such underwriters or broker-dealers. The selling shareholders may use any one or more of the
following methods (which may involve crosses or block transactions) when selling securities: (i) on any national stock exchange
or U.S. interdealer quotation system of a registered national securities association on which the securities may be listed or quoted
at the time of sale; (ii) in the over-the-counter market; (iii) underwritten transactions; (iv) ordinary brokerage transactions
and transactions in which the broker-dealer solicits purchasers; (v) block trades in which the broker-dealer will attempt to sell
the shares as agent, but may position and resell a portion of the block as principal to facilitate the transaction; (vi) purchases
by a broker-dealer as principal and resale by the broker-dealer for its account; (vii) an exchange distribution in accordance with
the rules of the applicable exchange; (viii) privately negotiated transactions; (ix) short sales effected after the date
the registration statement of which this prospectus is a part is declared effective by the SEC; (x) through the writing or settlement
of options or other hedging transactions, whether through an options exchange or otherwise; (xi) broker-dealers may agree with the
selling shareholders to sell a specified number of such securities at a stipulated price per share; (xii) a combination of any such
methods of sale; and (xiii) any other method permitted pursuant to applicable law.
The selling shareholders may also sell all or
a portion of their common stock in reliance upon Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”)
or Section 4(a)(1) under the Securities Act, if available, rather than under this prospectus, provided that they meet the criteria
and conform to the requirements of those provisions. The selling shareholders may also transfer, devise or gift such securities by other
means not described in this prospectus. The selling shareholders are not obligated to, and there is no assurance that the selling shareholders
will, sell all or any of the securities we are registering.
Each time that we or the selling shareholders
sell securities covered by this prospectus, the applicable prospectus supplement and/or other offering material will contain the terms
of the transaction, name or names of any underwriters, dealers, or agents and the respective amounts of securities underwritten or purchased
by them, the public offering price of the securities, and the applicable agent’s commission, dealer’s purchase price or underwriter’s
discount. The selling shareholders as well as any dealers and agents participating in the distribution of the securities may be deemed
to be underwriters, and compensation received by them upon resale of the securities may be deemed to be underwriting discounts. We or
the selling shareholders may enter into agreements to indemnify underwriters, dealers, and agents against civil liabilities, including
liabilities under the Securities Act, or to contribute to payments they may be required to make in respect thereof and to reimburse those
persons for certain expenses.
Sales of the securities may be effected from
time to time in one or more transactions, including negotiated transactions, (a) at a fixed price or prices, which may be changed;
(b) at market prices prevailing at the time of sale; (c) at prices related to prevailing market prices; (d) at varying
prices determined at the time of sale; or (e) at negotiated prices. Any initial offering price, dealer purchase price, discount
or commission may be changed from time to time. The securities may be distributed from time to time in one or more transactions, at negotiated
prices, at a fixed price or fixed prices (that may be subject to change), at market prices prevailing at the time of sale, at various
prices determined at the time of sale or at prices related to prevailing market prices.
Offers to purchase securities may be solicited
directly by us or by agents designated by us or the selling shareholders from time to time. Any such agent may be deemed to be an underwriter,
as that term is defined in the Securities Act, of the securities so offered and sold.
If underwriters or dealers acting as principal
are utilized in the sale of any securities in respect of which this prospectus is being delivered, such securities will be acquired by
the underwriters or dealers for their own account and may be resold from time to time in one or more transactions, including negotiated
transactions, at fixed public offering prices or at varying prices determined by the underwriters or dealers at the time of sale. Securities
may be offered to the public either through underwriting syndicates represented by managing underwriters or directly by one or more underwriters.
If any underwriter or underwriters are utilized in the sale of securities, unless otherwise indicated in the applicable prospectus supplement
and/or other offering material, the obligations of the underwriters are subject to certain conditions precedent, and the underwriters
will be obligated to purchase all such securities if any are purchased.
If a dealer is utilized in the sale of the securities
in respect of which this prospectus is delivered, we or the selling shareholders will sell such securities to the dealer, as principal.
The dealer may then resell such securities to the public at varying prices to be determined by such dealer at the time of resale. Transactions
through brokers or dealers may include block trades in which brokers or dealers will attempt to sell shares as agent but may position
and resell as principal to facilitate the transaction or in crosses, in which the same broker or dealer acts as agent on both sides of
the trade. Any such dealer may be deemed to be an underwriter, as such term is defined in the Securities Act, of the securities so offered
and sold.
Offers to purchase securities may be solicited
directly by us and the sale thereof may be made directly to institutional investors or others, who may be deemed to be underwriters within
the meaning of the Securities Act with respect to any resale thereof.
If so indicated in the applicable prospectus
supplement and/or other offering material, we or the selling shareholders may authorize agents and underwriters to solicit offers by
certain institutions to purchase securities at the public offering price set forth in the applicable prospectus supplement and/or other
offering material pursuant to delayed delivery contracts providing for payment and delivery on the date or dates stated in the applicable
prospectus supplement and/or other offering material. Such delayed delivery contracts will be subject only to those conditions set forth
in the applicable prospectus supplement and/or other offering material.
Agents, underwriters and dealers may be entitled
under relevant agreements to indemnification against certain liabilities, including liabilities under the Securities Act, or to contribution
with respect to payments which such agents, underwriters and dealers may be required to make in respect thereof. The terms and conditions
of any indemnification or contribution will be described in the applicable prospectus supplement and/or other offering material.
We or the selling shareholders may also sell
our common stock through various arrangements involving mandatorily or optionally exchangeable securities, and this prospectus may be
delivered in connection with those sales.
We or the selling shareholders 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 or the selling shareholders may enter into derivative, sale or forward sale transactions with third parties, or sell securities not
covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement and/or other
offering material indicates, in connection with those transactions, the third parties may sell securities covered by this prospectus
and the applicable prospectus supplement and/or other offering material, including in short sale transactions and by issuing securities
not covered by this prospectus but convertible into, or exchangeable for or representing beneficial interests in such securities covered
by this prospectus, or the return of which is derived in whole or in part from the value of such securities. The third parties may use
securities received under derivative, sale or forward sale transactions, or securities pledged by us or the selling shareholders or borrowed
from us, the selling shareholders or others to settle those sales or to close out any related open borrowings of shares and may use securities
received from us or the selling shareholders in settlement of those transactions to close out any related open borrowings of shares.
The third party in such sale transactions will be an underwriter and will be identified in the applicable prospectus supplement (or a
post-effective amendment) and/or other offering material.
Underwriters, broker-dealers or agents may receive
compensation in the form of commissions, discounts or concessions from us or the selling shareholders. Underwriters, broker-dealers or
agents may also receive compensation from the purchasers of shares for whom they act as agents or to whom they sell as principals, or
both. Compensation as to a particular underwriter, broker-dealer or agent might be in excess of customary commissions and will be in
amounts to be negotiated in connection with transactions involving shares. In effecting sales, broker-dealers may arrange for other broker-dealers
to participate in the resales.
Each series of securities will be a new issue
and, other than the common stock, which is listed on Nasdaq, will have no established trading market. We may elect to list any series
of securities on an exchange, and in the case of the common stock, on any additional or substitute exchange, but, unless otherwise specified
in the applicable prospectus supplement and/or other offering material, we shall not be obligated to do so. No assurance can be given
as to the liquidity of the trading market for any of the securities.
Agents, underwriters and dealers may engage in
transactions with, or perform services for us and our respective subsidiaries in the ordinary course of business.
Any underwriter may engage in overallotment,
stabilizing transactions, short covering transactions and penalty bids in accordance with Regulation M under the Exchange Act. Overallotment
involves sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying
security so long as the stabilizing bids do not exceed a specified maximum. Short covering transactions involve purchases of the securities
in the open market after the distribution is completed to cover short positions. Penalty bids permit the underwriters to reclaim a selling
concession from a dealer when the securities originally sold by the dealer are purchased in a covering transaction to cover short positions.
Those activities may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue
any of the activities at any time. An underwriter may carry out these transactions on Nasdaq, any additional or substitute exchange on
which our common stock are listed, in the over-the-counter market or otherwise. We do not make any representation or prediction as to
the direction or magnitude of any effect that the transactions described above might have on the price of the securities. In addition,
we do not make any representation that underwriters will engage in such transactions or that such transactions, once commenced, will
not be discontinued without notice.
The place and time of delivery for securities
will be set forth in the accompanying prospectus supplement and/or other offering material for such securities.
To comply with applicable state securities laws,
the securities offered by this prospectus will be sold, if necessary, in such jurisdictions only through registered or licensed brokers
or dealers. In addition, securities may not be sold in some states unless they have been registered or qualified for sale in the applicable
state or an exemption from the registration or qualification requirement is available and is complied with.
LEGAL MATTERS
The validity of the securities being offered
hereby will be passed upon for us by Faegre Drinker Biddle & Reath LLP. Additional legal matters may be passed upon for us,
the selling stockholders or any underwriters, dealers or agents, by counsel named in the applicable prospectus supplement.
EXPERTS
The financial statements incorporated in this
Prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2022 have been so incorporated in
reliance on the report of MaloneBailey LLP, an independent registered public accounting firm, given on the authority of said firm as
experts in auditing and accounting.
AudioEye, Inc.
$150,000,000
Preferred Stock
Common Stock
Debt Securities
Stock Purchase Contracts
Warrants
Rights
Units
2,820,000 Shares of Common Stock
Offered by the Selling Stockholders
PROSPECTUS
, 2024
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. |
Other Expenses of Issuance and Distribution |
The following table sets forth the various costs
and expenses, all of which will be paid by the Registrant, in connection with the sale and distribution of the securities being registered.
All amounts are estimated, except the registration fee required by the Securities and Exchange Commission:
Registration Fee | |
$ | 3,103 | |
Fees and Expenses of the Trustee | |
| | * |
Legal Fees and Expenses | |
| | * |
Accounting Fees and Expenses | |
| | * |
FINRA Filing Fees | |
| | * |
The Nasdaq Capital Market Supplemental Listing Fees | |
| | * |
Miscellaneous | |
| | * |
Total | |
$ | | * |
|
(*) |
These fees are calculated based on the securities offered
and the number of issuances and accordingly cannot be estimated at this time. |
Item 15. |
Indemnification of Directors and Officers |
Our bylaws provide that, to the fullest extent
permitted by the DGCL as the same exists or may hereafter be, our directors shall not be liable to the Company or our stockholders for
monetary damages for breach of fiduciary duty as a director. In addition, our bylaws provide that we may, to the fullest extent permitted
by law, indemnify any person made or threatened to be made a party to an action, suit or proceeding, whether criminal, civil, administrative
or investigative, by reason of the fact that such person is or was a director, officer or employee of the Company, or any predecessor
of the Company, or serves or served at any other enterprise as a director, officer or employee at the request of the Company.
Our bylaws provide that the Company shall indemnify
our directors and officers to the fullest extent not prohibited by the DGCL or any other law. We are not required to indemnify any director
or officer in connection with a proceeding brought by such director or officer unless (i) such indemnification is expressly required
by law; (ii) the proceeding was authorized by our board of directors; or (iii) such indemnification is provided by the Company,
in its sole discretion, pursuant to the powers vested in the Company under the DGCL or any other applicable law. In addition, our bylaws
provide that the Company may indemnify its employees and other agents as set forth in the DGCL or any other applicable law.
We have also entered into separate indemnification
agreements with our directors and officers that require us, among other things, to indemnify to the fullest extent permitted by the laws
of the State of Delaware and subject to certain exceptions. The Company is not required to indemnify under the agreement for (i) actions
initiated by the director without the authorization of consent of the board of directors; (ii) actions initiated to enforce the
indemnification agreement unless the director is successful; (iii) actions resulting from violations of Section 16 of the Exchange
Act in which a final judgment has been rendered against the director; (iv) actions for any reimbursement of any bonus or other incentive-based
or equity-based compensation or of any profits realized from the sale of securities of the Company, as required in each case under the
Exchange Act or applicable law; (v) actions for prohibited amounts pursuant to Section 410(a) of ERISA; and (vi) actions
to enforce any non-compete or non-disclosure provisions of any agreement.
The indemnification provided for above provides
for reimbursement of all losses of the indemnified party, including expenses, judgment, fines and amounts paid in settlement. The right
to indemnification set forth above includes the right for us to pay the expenses (including attorneys’ fees) incurred in defending
any such proceeding in advance of its final disposition in certain circumstances.
The DGCL provides that indemnification is permissible
only when the director, officer, employee, or agent acted in good faith and in a manner 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 the
conduct was unlawful. The DGCL also precludes indemnification in respect of any claim, issue, or matter as to which an officer, director,
employee, or agent shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery
of the State of Delaware or the court in which such action or suit was brought shall determine that, despite such adjudication of liability,
but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which
the Court of Chancery or such other court deems proper.
We have agreed to indemnify the underwriters
and their controlling persons, and the underwriters have agreed to indemnify us and our controlling persons, against certain liabilities,
including liabilities under the Securities Act. Reference is made to the Underwriting Agreement filed as part of the exhibits hereto.
See Item 17 for information regarding our
undertaking to submit to adjudication the issue of indemnification for violation of the securities laws.
We maintain insurance policies that provide coverage
to our directors, officers, employees or agents of the Company against certain liabilities.
Item 16. Exhibits
The following Exhibits are filed as part of this Registration Statement:
Exhibit No. |
|
Description |
1.1* |
|
Form of Underwriting
Agreement |
3.1 |
|
Restated
Certificate of Incorporation of AudioEye, Inc., dated as of August 8, 2022 (1) |
3.2 |
|
Amended
and Restated ByLaws as of August 13, 2020 (2) |
4.1* |
|
Form of Preferred
Stock Certificate |
4.2 |
|
Form of
Senior Indenture |
4.3 |
|
Form of
Subordinated Indenture |
4.4* |
|
Form of Warrant
Agreement |
4.5* |
|
Form of Warrant |
4.6* |
|
Form of Rights
Agent Agreement (including form of Rights Certificate) |
4.7* |
|
Form of Unit Agreement
(including form of Unit Certificate) |
4.8* |
|
Form of Stock Purchase
Contract (including form of Stock Purchase Contract Certificate) |
5.1 |
|
Opinion of Faegre Drinker
Biddle & Reath LLP |
23.1 |
|
Consent
of Independent Registered Public Accounting Firm |
23.2 |
|
Consent of Faegre Drinker
Biddle & Reath LLP (Included in Exhibit 5.1 to the Registration Statement) |
24.1 |
|
Power of Attorney (included
on Signature Page to the Registration Statement) |
25.1* |
|
Statement of Eligibility
on Form T-1 under the Trust Indenture Act of 1939, as amended, of the trustee, as trustee under the Senior Indenture filed as
Exhibit 4.3 above |
25.2* |
|
Statement of Eligibility
on Form T-1 under the Trust Indenture Act of 1939, as amended, of the trustee, as trustee under the Subordinated Indenture filed
as Exhibit 4.4 above |
107 |
|
Filing
Fee Table |
|
* |
To be filed by amendment or as an
exhibit to a document incorporated by reference into this registration statement at a later date, in connection with a specific offering. |
|
(1) |
Incorporated by reference from Exhibit 3.1 to
Form 10-Q, filed with the SEC on August 9, 2022. |
|
(2) |
Incorporated by reference from Exhibit 3.1 to
Form 8-K, filed with the SEC on September 24, 2020. |
|
(a) |
The undersigned registrant
hereby undertakes: |
|
(1) |
To file, during the 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 percent change in the maximum aggregate offering price set forth in the “Calculation
of Registration Fee” table in the effective Registration Statement; and |
|
(iii) |
To include any material
information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change
to such information in the Registration Statement; |
provided,
however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above do not apply if the information required to
be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by
the Registrant pursuant to Section 13 or 15(d) of the 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. |
|
(4) |
That, for the purpose of
determining liability under the Securities Act of 1933 to any purchaser: |
|
(i) |
Each prospectus filed by
the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the Registration Statement as of the date the filed
prospectus was deemed part of and included in the Registration Statement; and |
|
(ii) |
Each prospectus required
to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information
required by Section 10(a) of the Securities Act 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.
| (5) | 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. |
|
(c) |
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 SEC 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. |
|
(d) |
The undersigned registrant
hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of
the Trust Indenture Act. |
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Tucson, State of Arizona on February 7, 2024.
|
AUDIOEYE, INC. |
|
|
|
By:
|
/s/
David Moradi |
|
David
Moradi |
|
Chief
Executive Officer |
POWER OF ATTORNEY
The undersigned director and/or officer of AudioEye, Inc.,
a Delaware corporation (the “Company”), does hereby make, constitute and appoint Dr. Carr Bettis, David Moradi and Kelly
Georgevich, and each of them singly (with full power to each of them to act alone), his or her true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for such person and in his name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to this Registration Statement and any related Registration Statement filed
pursuant to Rule 462(b) or any successor regulation, and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing requisite or 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 that any such attorney-in-fact
and agent, or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on the date indicated.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/
David Moradi |
|
Chief
Executive Officer, Director |
|
February 7,
2024 |
David
Moradi |
|
(Principal
Executive Officer) |
|
|
|
|
|
|
|
/s/
Kelly Georgevich |
|
Chief
Financial Officer |
|
February 7,
2024 |
Kelly
Georgevich |
|
(Principal
Financial and Accounting Officer) |
|
|
|
|
|
|
|
/s/
Dr. Carr Bettis |
|
Executive
Chairman, Director |
|
February 7,
2024 |
Dr. Carr
Bettis |
|
|
|
|
|
|
|
|
|
/s/
Anthony Coelho |
|
Director |
|
February 7,
2024 |
Anthony
Coelho |
|
|
|
|
|
|
|
|
|
/s/
Jamil Tahir |
|
Director |
|
February 7,
2024 |
Jamil
Tahir |
|
|
|
|
|
|
|
|
|
/s/
Dr. Katherine E. Fleming |
|
Director |
|
February 7,
2024 |
Dr. Katherine
E. Fleming |
|
|
|
|
EXHIBIT 4.2
AUDIOEYE, INC.
TO
[___________________]
Trustee
________________
INDENTURE
Dated as of [__________]
________________
Senior Debt Securities
AudioEye, Inc.
Reconciliation and tie between Trust Indenture
Act of 1939 and
Indenture, dated as of [_____________]
Trust Indenture Act Section |
Indenture Section |
§310(a)(1) |
609 |
(a)(2) |
609 |
(a)(3) |
Not Applicable |
(a)(4) |
Not Applicable |
(a)(5) |
609 |
(b) |
608, 610 |
§311(a) |
613 |
(b) |
613 |
§312(a) |
701, 702(a) |
(b) |
702(b) |
(c) |
702(c) |
§313(a) |
703(a) |
(b) |
703(a) |
(c) |
703(a) |
(d) |
703(b) |
§314(a) |
704, 1005 |
(b) |
Not Applicable |
(c)(1) |
102 |
(c)(2) |
102 |
(c)(3) |
Not Applicable |
(d) |
Not Applicable |
(e) |
102 |
§315(a) |
601 |
(b) |
602 |
(c) |
601 |
(d) |
601 |
(e) |
514 |
§316(a) |
101 |
(a)(1)(A) |
104(h), 502, |
|
512 |
(a)(1)(B) |
104(h), 513 |
(a)(2) |
Not Applicable |
(b) |
508 |
(c) |
104(h) |
§317(a)(1) |
503 |
(a)(2) |
504 |
(b) |
1003 |
§318(a) |
107 |
(c) |
107 |
Note: This reconciliation and tie shall
not, for any purpose, be deemed to be part of the Indenture.
TABLE OF CONTENTS
ARTICLE ONE
Definitions and Other Provisions of General Application |
|
Section 101. |
Definitions |
1 |
|
|
ARTICLE TWO
Debt Security Forms |
|
Section 201. |
Forms Generally |
10 |
Section 203. |
Debt Securities in Global Form |
10 |
|
|
ARTICLE THREE
The Debt Securities |
|
Section 301. |
Amount Unlimited; Issuance in Series |
11 |
Section 302. |
Denominations |
13 |
Section 303. |
Execution, Authentication, Delivery and Dating |
13 |
Section 304. |
Temporary Debt Securities |
14 |
Section 305. |
Registration; Registration of Transfer and Exchange |
16 |
Section 306. |
Mutilated, Destroyed, Lost and Stolen Debt Securities |
18 |
Section 307. |
Payment of Interest; Interest Rights Preserved |
19 |
Section 308. |
Persons Deemed Owners |
20 |
Section 309. |
Cancellation |
21 |
Section 310. |
Computation of Interest |
21 |
Section 311. |
Certification by a Person Entitled to Delivery of a Bearer
Security |
21 |
Section 312. |
Judgments |
21 |
|
|
ARTICLE FOUR
Satisfaction and Discharge |
|
Section 401. Satisfaction and Discharge of Indenture |
22 |
|
|
ARTICLE FIVE
Remedies |
|
Section 501. |
Events of Default |
25 |
Section 502. |
Acceleration of Maturity; Rescission and Annulment |
25 |
Section 504. |
Trustee May File Proofs of Claim |
27 |
Section 505. |
Trustee May Enforce Claims without Possession of Debt
Securities or Coupons |
27 |
Section 506. |
Application of Money Collected |
27 |
Section 507. |
Limitation on Suits |
28 |
Section 508. |
Unconditional Right of Holders to Receive Principal, Premium
and Interest |
28 |
Section 510. |
Rights and Remedies Cumulative |
28 |
Section 511. |
Delay or Omission Not Waiver |
28 |
Section 512. |
Control by Holders of Debt Securities |
29 |
Section 513. |
Waiver of Past Defaults |
29 |
Section 514. |
Undertaking for Costs |
29 |
Section 515. |
Waiver of Stay or Extension Laws |
29 |
TABLE
OF CONTENTS
(continued)
ARTICLE SIX
The Trustee |
|
Section 601. |
Certain Duties and Responsibilities |
30 |
Section 602. |
Notice of Default |
30 |
Section 603. |
Certain Rights of Trustee |
30 |
Section 604. |
Not Responsible for Recitals or Issuance of Debt Securities |
31 |
Section 605. |
May Hold Debt Securities or Coupons |
31 |
Section 606. |
Money Held in Trust |
31 |
Section 607. |
Compensation and Reimbursement |
32 |
Section 608. |
Disqualification; Conflicting Interests |
32 |
Section 609. |
Corporate Trustee Required; Eligibility |
32 |
Section 610. |
Resignation and Removal; Appointment of Successor |
32 |
Section 611. |
Acceptance of Appointment by Successor |
34 |
Section 612. |
Merger, Conversion, Consolidation or Succession to Business |
34 |
Section 613. |
Preferential Collection of Claims Against Company |
35 |
Section 614. |
Authenticating Agent |
35 |
|
|
ARTICLE SEVEN
Holders’ Lists and Reports By Trustee and Company |
|
Section 701. |
Company to Furnish Trustee Names and Addresses of Holders |
36 |
Section 702. |
Preservation of Information; Communications to Holders |
36 |
Section 703. |
Reports by Trustee |
36 |
Section 704. |
Reports by Company |
36 |
|
|
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease |
|
Section 801. |
Company May Consolidate, etc. Only on Certain Terms |
37 |
Section 802. |
Successor Corporation Substituted |
37 |
|
|
ARTICLE NINE
Supplemental Indentures |
|
Section 901. |
Supplemental Indentures without Consent of Holders |
37 |
Section 902. |
Supplemental Indentures with Consent of Holders |
38 |
Section 903. |
Execution of Supplemental Indentures |
39 |
Section 904. |
Effect of Supplemental Indentures |
39 |
Section 905. |
Conformity with Trust Indenture Act |
39 |
Section 906. |
Reference in Debt Securities to Supplemental Indentures |
39 |
|
|
ARTICLE TEN
Covenants |
|
Section 1001. |
Payment of Principal, Premium and Interest |
39 |
Section 1002. |
Maintenance of Office or Agency |
40 |
Section 1003. |
Money for Debt Securities Payments to Be Held in Trust |
40 |
Section 1004. |
Payment of Additional Amounts |
41 |
Section 1005. |
Officers’ Certificate as to Default |
42 |
Section 1006. |
Waiver of Certain Covenants |
42 |
TABLE
OF CONTENTS
(continued)
|
|
ARTICLE ELEVEN
Redemption of Debt Securities |
|
Section 1101. |
Applicability of Article |
42 |
Section 1102. |
Election to Redeem; Notice to Trustee |
42 |
Section 1103. |
Selection by Trustee of Debt Securities to be Redeemed |
42 |
Section 1104. |
Notice of Redemption |
43 |
Section 1105. |
Deposit of Redemption Price |
43 |
Section 1106. |
Debt Securities Payable on Redemption Date |
43 |
Section 1107. |
Debt Securities Redeemed in Part |
44 |
ARTICLE TWELVE
Sinking Funds |
|
Section 1201. |
Applicability of Article |
44 |
Section 1202. |
Satisfaction of Sinking Fund Payments with Debt Securities |
44 |
Section 1203. |
Redemption of Debt Securities for Sinking Fund |
45 |
|
|
ARTICLE THIRTEEN
Repayment at the Option of Holders |
|
Section 1301. |
Applicability of Article |
45 |
Section 1302. |
Repayment of Debt Securities |
45 |
Section 1303. |
Exercise of Option; Notice |
45 |
Section 1304. |
Election of Repayment by Remarketing Entities |
46 |
Section 1305. |
Securities Payable on the Repayment Date |
46 |
|
|
ARTICLE FOURTEEN
Meetings of Holders of Debt Securities |
|
Section 1401. |
Purposes for Which Meetings May Be Called |
47 |
Section 1402. |
Call, Notice and Place of Meetings |
48 |
Section 1403. |
Persons Entitled to Vote at Meetings |
48 |
Section 1404. |
Quorum; Action |
48 |
Section 1405. |
Determination of Voting Rights; Conduct and Adjournment of
Meetings |
49 |
Section 1406. |
Counting Votes and Recording Action of Meetings |
49 |
|
|
ARTICLE
FIFTEEN Defeasance |
|
Section 1501. |
Termination of Company’s Obligations |
50 |
Section 1502. |
Repayment to Company |
50 |
Section 1503. |
Indemnity for Eligible Instruments |
51 |
EXHIBITS
Exhibit A1
Exhibit A2
Exhibit B
INDENTURE (the “Indenture”)
dated as of [_______________], between AUDIOEYE, INC., a Delaware corporation (hereinafter called the “Company”), having
its principal place of business at 5210 E. Williams Circle, Suite 750, Tucson, AZ 85711, and [_________________], (hereinafter called
the “Trustee”), a national banking association duly organized and validly existing under the laws of the United States of
America having its Corporate Trust Office at [_______________________________].
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, bonds and other evidences
of indebtedness (herein called the “Debt Securities”).
All things necessary have been
done to make this Indenture a valid agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE
WITNESSETH:
For and in consideration of
the premises and the purchase of the Debt Securities of any series created and issued on or after the date hereof by the Holders thereof,
it is mutually covenanted and agreed for the benefit of all Holders of such Debt Securities or of any such series, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms
defined in this Article have the meanings assigned to them in this Article, and include the plural as well as the singular;
(2) all other
terms used herein which are defined in the Trust Indenture Act or by Commission rule or regulation under the Trust Indenture Act,
either directly or by reference therein, as in force at the date as of which this instrument was executed, except as provided in Section 905,
have the meanings assigned to them therein;
(3) all accounting
terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles, and,
except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation
required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States at the date of such
computation; and
(4) 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.
Certain terms, used principally
in Article Six, are defined in that Article.
“Act” when used
with respect to any Holder has the meaning specified in Section 104.
“Affiliate” of any
specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control
with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting
securities by contract or otherwise, and the terms “controlling” and “controlled” have meanings correlative to
the foregoing.
“Authorized Newspaper”
means a newspaper in an official language of the country of publication or in the English language customarily published on each Business
Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in the place in connection with which the
term is used or in the financial community of such place. Where successive publications are required to be made in Authorized Newspapers,
the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing requirements and
in each case on any Business Day.
“Bearer Security”
means any Debt Security established pursuant to Section 201 which is payable to bearer including, without limitation, unless the
context otherwise indicates, a Debt Security in global bearer form.
“Board of Directors”
means either the board of directors of the Company, or the executive or any other committee of that board duly authorized to act in respect
hereof.
“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee. Where any provision of
this Indenture refers to action to be taken pursuant to a Board Resolution (including the establishment of any series of the Debt Securities
and the forms and terms thereof), such action may be taken by any committee of the Board of the Company or any officer or employee of
the Company authorized to take such action by a Board Resolution.
“Business Day”,
when used with respect to any Place of Payment, means any day which is not a Saturday or Sunday and which is not a legal holiday or a
day on which banking institutions or trust companies in that Place of Payment are authorized or obligated by law or executive order to
close.
“Clearstream” means
Clearstream Banking S.A.
“Commission” means
the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or if at any time after the
execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties on such date.
“Company” means
the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“Company Request”
and “Company Order” mean, respectively, except as otherwise provided in this Indenture, a written request or order signed
in the name of the Company by the Chairman of the Board, a Vice Chairman of the Board, the President or a Vice President (any references
to a Vice President of the Company herein shall be deemed to include any Vice President of the Company whether or not designated by a
number or word or words added before or after the title “Vice President”), the Treasurer, an Assistant Treasurer, the Controller,
an Assistant Controller, Secretary or an Assistant Secretary of the Company or by another officer of the Company duly authorized to sign
by a Board Resolution, and delivered to the Trustee.
“Corporate Trust Office”
means the principal office of the Trustee at which at any particular time its corporate trust business shall be administered, which office
at the date of original execution of this Indenture is located at [__________________________].
The term “corporation”
includes corporations, associations, companies and business trusts.
The term “coupon”
means any interest coupon appertaining to a Bearer Security.
“Debt Securities”
has the meaning stated in the first recital of this Indenture and more particularly means any Debt Securities authenticated and delivered
under this Indenture.
“Defaulted Interest”
has the meaning specified in Section 307.
“Depositary” means,
with respect to the Debt Securities of any series issuable or issued in the form of a Global Security, the Person designated as Depositary
by the Company pursuant to Section 301 until a successor Depositary shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter “Depositary” shall mean or include each person who is then a Depositary hereunder, and if
at any time there is more than one such Person, “Depositary” as used with respect to the Debt Securities of any such series
shall mean the Depositary with respect to the Debt Securities of that series.
“Designated Currency”
has the meaning specified in Section 312.
“Dollar” or “$”
means the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private
debts.
“Eligible Instruments”
means monetary assets, money market instruments and securities that are payable in Dollars only and essentially risk free as to collection
of principal and interest, including U.S. Government Obligations.
“Euro” means the
single currency of the European Monetary Union as defined under EC Regulation 1103/97 adopted under Article 235 of the EU Treaty
and under EC Regulation 974/98 adopted under Article 109l(4) of the EU Treaty or under any successor European legislation from
time to time.
“Euroclear” means
Euroclear Bank S.A./N.V., as operator of the Euroclear System.
“Event of Default”
has the meaning specified in Section 501.
“Exchange Act” means
the Securities Exchange Act of 1934, as amended.
“Exchange Rate”
shall have the meaning specified as contemplated in Section 301.
“Exchange Rate Agent”
shall have the meaning specified as contemplated in Section 301.
“Exchange Rate Officer’s
Certificate”, with respect to any date for the payment of principal of (and premium, if any) and interest on any series of Debt
Securities, means a certificate setting forth the applicable Exchange Rate and the amounts payable in Dollars and Foreign Currencies in
respect of the principal of (and premium, if any) and interest on Debt Securities denominated in Euro, any other composite currency or
Foreign Currency, and signed by the Chairman of the Board, a Vice Chairman of the Board, the President, a Vice President, the Treasurer
or any Assistant Treasurer of the Company or the Exchange Rate Agent appointed pursuant to Section 301, and delivered to the Trustee.
“Foreign Currency”
means a currency issued by the government of any country other than the United States of America.
“Global Exchange Agent”
has the meaning specified in Section 304.
“Global Exchange Date”
has the meaning specified in Section 304.
“Global Security”
means a Debt Security issued to evidence all or part of a series of Debt Securities in accordance with Section 303.
“Holder”, with respect
to a Registered Security, means a Person in whose name such Registered Security is registered in the Security Register and, with respect
to a Bearer Security or a coupon, means the bearer thereof.
“Indenture” means
this instrument as originally executed or as it may from time to time be supplemented, amended or restated by or pursuant to one or more
indentures supplemental hereto entered into pursuant to the applicable provisions hereof and, unless the context otherwise requires, shall
include the terms of a particular series of Debt Securities established as contemplated by Section 301.
The term “interest”,
when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable
after Maturity.
“Interest Payment Date”,
with respect to any Debt Security, means the Stated Maturity of an installment of interest on such Debt Security.
“Maturity”, when
used with respect to any Debt Security, means the date on which the principal of such Debt Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption, repayment at the option of
the Holder or otherwise.
“Officers’ Certificate”
means a certificate signed by the Chairman of the Board, a Vice Chairman of the Board, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or an Assistant Secretary of the Company, and delivered
to the Trustee.
“Opinion of Counsel”
means a written opinion of counsel, who may (except as otherwise expressly provided in this Indenture) be an employee of or counsel for
the Company, or who may be other counsel, which is delivered to the Trustee.
“Original Issue Discount
Security” means any Debt Security which provides for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
“Outstanding”, when
used with respect to Debt Securities means, as of the date of determination, all Debt Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Debt Securities
theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(ii) Debt Securities
or portions thereof for whose payment or redemption money or Eligible Instruments in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Debt Securities and any coupons appertaining thereto; provided, however,
that if such Debt 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; and
(iii) Debt
Securities in exchange for or in lieu of which other Debt Securities have been authenticated and delivered, or which have been paid, pursuant
to this Indenture;
provided,
however, that in determining whether the Holders of the requisite principal amount of Debt Securities Outstanding have given
any request, demand, authorization, direction, notice, consent or waiver hereunder, Debt Securities owned by the Company or any other
obligor upon the Debt Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying upon such request, demand, authorization, direction, notice,
consent or waiver, only Debt Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded.
Debt Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee’s right so to act with respect to such Debt Securities and that the pledgee is not the Company or any
other obligor upon the Debt Securities or any Affiliate of the Company or of such other obligor.
“Paying Agent” means
any Person authorized by the Company to pay the principal of (and premium, if any) or interest on any Debt Securities on behalf of the
Company.
“Person” means any
individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof.
“Place of Payment”,
when used with respect to the Debt Securities of any series means any place where the principal of (and premium, if any) and interest
on the Debt Securities of that series are payable as specified as contemplated by Section 301.
“Predecessor Security”
of any particular Debt Security means every previous Debt Security evidencing all or a portion of the same debt as that evidenced by such
particular Debt Security; and, for the purposes of this definition, any Debt Security authenticated and delivered under Section 306
in lieu of a lost, destroyed or stolen Debt Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Debt Security.
“Redemption Date”,
when used with respect to any Debt Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price”,
when used with respect to any Debt Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
“Registered Security”
means any Debt Security in the form of Registered Securities established pursuant to Section 201 which is registered in the Security
Register.
“Regular Record Date”
for the interest payable on any Interest Payment Date on the Registered Securities of any series means the date specified for that purpose
as contemplated by Section 301.
“Remarketing Entity”,
when used with respect to Debt Securities of any series which are repayable at the option of the Holders thereof before their Stated Maturity,
means any person designated by the Company to purchase any such Debt Securities.
“Repayment Date”,
when used with respect to any Debt Security to be repaid upon exercise of an option for repayment by the Holder, means the date fixed
for such repayment pursuant to this Indenture.
“Repayment Price”,
when used with respect to any Debt Security to be repaid upon exercise of an option for repayment by the Holder, means the price at which
it is to be repaid pursuant to this Indenture.
“Responsible Officer”
when used with respect to the Trustee, means any vice president, any assistant vice president, any senior trust officer or assistant trust
officer, any trust officer, or any other officer associated with the corporate trust department 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 such person’s knowledge of and familiarity with the particular
subject.
“Security Register”
and “Security Registrar” have the respective meanings specified in Section 305.
“Special Record Date”
for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 307.
“Stated Maturity,”
when used with respect to any Debt Security or any installment of interest thereon, means the date specified in such Debt Security or
a coupon representing such installment of interest as the fixed date on which the principal of such Debt Security or such installment
is due and payable.
“Trust Indenture Act”
means the Trust Indenture Act of 1939, as amended, as in force at the date as of which this instrument was executed, except as provided
in Section 905.
“Trustee” means
the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is
then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Debt
Securities of any series shall mean the Trustee with respect to Debt Securities of that series.
“United States”
means the United States of America (including the District of Columbia) and its possessions.
“United States Alien”
means any Person who, for United States Federal income tax purposes, is a foreign corporation, a non-resident alien individual, a non-resident
alien fiduciary of a foreign estate or trust, or a foreign partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a non-resident alien fiduciary of a foreign estate or trust.
“U.S. Government Obligations”
means direct obligations of the United States for the payment of which its full faith and credit is pledged, or obligations of a person
controlled or supervised by and acting as an agency or instrumentality of the United States the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States, and shall also include a depository receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such U.S. Government Obligation held by such custodian for the account
of the holder of such depository receipt, provided that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of principal of or interest on the U.S. Government Obligation evidenced by such depository
receipt.
Section 102.
Compliance Certificates and Opinions.
Upon any application or request
by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee, if so
requested by the Trustee, an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion
with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(1) a statement
that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(2) a brief
statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate
or opinion are based;
(3) a statement
that, in the opinion of each such individual, he or she has made such examination or investigation as is necessary to enable him or her
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, in the opinion of each such individual, such condition or covenant has been complied with.
Section 103.
Form of Documents Delivered to Trustee.
In any case where several matters
are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person
may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of
an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by,
counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers
of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate or opinions or representations with respect to such matters
are erroneous.
Where any Person is required
to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one instrument.
Section 104.
Acts of Holders.
(a) Any request,
demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders
may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an
agent duly appointed in writing. If Debt Securities of a series are issuable in whole or in part as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders
may, alternatively, be embodied in and evidenced by the record of Holders of Debt Securities voting in favor thereof, either in
person or by proxies duly appointed in writing, at any meeting of Holders of Debt Securities duly called and held in accordance with
the provisions of Article Fourteen, or a combination of such instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the
Trustee, and, where it is hereby expressly required, to the Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such
instrument or instruments and so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing
any such agent, or the holding by any Person of a Debt Security, shall be sufficient for any purpose of this Indenture and (subject
to Section 601) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section. The record
of any meeting of Holders of Debt Securities shall be proved in the manner provided in Section 1406.
(b) The fact and date of
the execution by any Person of any such instrument or writing may be proved in any manner which the Trustee deems sufficient.
(c) The ownership of Registered
Securities shall be proved by the Security Register.
(d) The principal amount
and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may be proved by the production of such
Bearer Securities or by a certificate executed, as depositary, by any trust company, bank, banker or other depositary, wherever situated,
if such certificate shall be deemed by the Trustee to be satisfactory, showing that at the date therein mentioned such Person had on deposit
with such depositary, or exhibited to it, the Bearer Securities in the amount and with the serial numbers therein described; or such facts
may be proved by the certificate or affidavit of the Person holding such Bearer Securities, if such certificate or affidavit is deemed
by the Trustee to be satisfactory. The Trustee and the Company may assume that such ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the same Bearer Security is produced, or (2) such Bearer Security
is produced to the Trustee by some other person, or (3) such Bearer Security is surrendered in exchange for a Registered Security,
or (4) such Bearer Security is no longer Outstanding.
(e) The fact and date of
execution of any such instrument or writing, the authority of the Person executing the same and the principal amount and serial numbers
of Bearer Securities held by the Person so executing such instrument or writing and the date of holding the same may also be proved in
any other manner which the Trustee deems sufficient; and the Trustee may in any instance require further proof with respect to any of
the matters referred to in this Section.
(f) Any request, demand,
authorization, direction, notice, consent, waiver or other Act of the Holder of any Debt Security shall bind every future holder of the
same Debt Security and the Holder of every Debt Security issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, suffered or omitted by the Trustee or the Company in reliance thereon, whether or not notation
of such action is made upon such Debt Security.
(g) For purposes of determining
the principal amount of Outstanding Debt Securities of any series the Holders of which are required, requested or permitted to give any
request, demand, authorization, direction, notice, consent, waiver or take any other Act under this Indenture, (i) each Original
Issue Discount Security shall be deemed to have the principal amount determined by the Trustee that could be declared to be due and payable
pursuant to the terms of such Original Issue Discount Security as of the date there is delivered to the Trustee and, where it is hereby
expressly required, to the Company, such Act by Holders of the required aggregate principal amount of the Outstanding Debt Securities
of such series and (ii) each Debt Security denominated in a Foreign Currency or composite currency shall be deemed to have the principal
amount determined by the Exchange Rate Agent by converting the principal amount of such Debt Security in the currency in which such Debt
Security is denominated into Dollars at the Exchange Rate as of the date such Act is delivered to the Trustee and, where it is hereby
expressly required, to the Company, by Holders of the required aggregate principal amount of the Outstanding Debt Securities of such series
(or, if there is no such rate on such date, such rate on the date determined as specified as contemplated in Section 301).
(h) The Company may set
a record date for purposes of determining the identity of Holders of Debt Securities of any series entitled to vote or consent to any
action by vote or consent authorized or permitted by Section 512 or Section 513. Such record date shall be the later of 30 days
prior to the first solicitation of such consent or the date of the most recent list of Holders of such Debt Securities furnished to the
Trustee pursuant to Section 701 prior to such solicitation.
Section 105.
Notices, etc., to Trustee and Company.
Any request, demand, authorization,
direction, notice, consent, waiver or other Act of Holders or other document provided or permitted by this Indenture to be made upon,
given or furnished to, or filed with,
(1) the Trustee
by any Holder or by the Company shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided), if made,
given, furnished or filed in writing (which may be via original or facsimile) to or with the Trustee at its Corporate Trust Office and
which shall be deemed delivered when actually received by a Responsible Officer of the Trustee, or
(2) the Company
by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to the Company addressed to the attention of its Secretary at the address of its principal office
specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company.
The Trustee agrees to accept
and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured
electronic methods; provided, however, that (a) the party providing such electronic instructions or directions, subsequent
to the transmission thereof, shall provide the originally executed instructions or directions to the Trustee in a timely manner and (b) such
originally executed instructions or directions shall be signed by an authorized representative of the party providing such instructions
or directions. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s
reliance upon and compliance with such instructions or directions notwithstanding such instructions or directions conflict or are inconsistent
with a subsequent written instruction or direction or if the subsequent written instruction or direction is never received. The party
providing instructions or directions by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods, as aforesaid,
agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including
without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
Section 106.
Notice to Holders; Waiver.
Except as otherwise expressly
provided herein, where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given to Holders
of Registered Securities if in writing and mailed, first-class postage prepaid (or, with respect to Global Securities, delivered in accordance
with the Depositary’s applicable procedures), to each Holder of a Registered Security affected by such event, at such Holder’s
address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice.
In any case where notice to
Holders of Registered Securities is to be given by mail, (a) if, by reason of the suspension of or irregularities in regular mail
service or for any other reason, it shall be impossible or impracticable to mail notice of any event to Holders of Registered Securities
when said notice is required to be given pursuant to any provision of this Indenture or of the Debt Securities, then any manner of giving
such notice as shall be satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice and (b) neither the
failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered Securities.
Where this Indenture provides
for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the
event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Any request, demand, authorization,
direction, notice, consent, election, waiver or other Act required or permitted under this Indenture shall be in the English language.
Notwithstanding any other provision
of this Indenture or any Debt Security, where this Indenture or any Debt Security provides for notice of any event or any other communication
(including any notice of redemption or repurchase) to a Holder of a Global Security (whether by mail or otherwise), such notice shall
be sufficiently given if given to the Depositary (or its designee) pursuant to the standing instructions from the Depositary or its designee,
including by electronic mail in accordance with accepted practices at the Depositary.
Section 107.
Conflict with Trust Indenture Act.
If any provision hereof limits,
qualifies or conflicts with another provision hereof which is required to be included in this Indenture by any of the provisions of the
Trust Indenture Act, such required provision shall control.
Section 108.
Effect of Headings and Table of Contents.
The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 109.
Successors and Assigns.
All covenants and agreements
in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
Section 110.
Separability Clause.
In case any provision in this
Indenture or in the Debt Securities or any coupons 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.
Section 111.
Benefits of Indenture.
Nothing in this Indenture or
in the Debt Securities or any coupons, express or implied, shall give to any Person, other than the parties hereto and their successors
hereunder, any Paying Agent and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 112.
Governing Law.
This Indenture and the Debt
Securities and any coupons shall be governed by and construed in accordance with the laws of the State of New York.
Section 113.
Legal Holidays.
In any case where any Interest
Payment Date, Redemption Date, Repayment Date or Stated Maturity of any Debt Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Debt Securities or coupons) payment of interest or principal (and
premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place
of Payment with the same force and effect as if made on the Interest Payment Date, Redemption Date, Repayment Date or at the Stated Maturity,
and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date, Repayment
Date or Stated Maturity, as the case may be.
Section 114.
Counterparts.
This Indenture may be executed
in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute
but one and the same Indenture.
Section 115.
Exemption from Individual Liability.
No recourse under or upon any
obligation, covenant or agreement of this Indenture, or of any Debt Security or any coupon, or for any claim based thereon or otherwise
in respect thereof, shall be had against any incorporator, stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Indenture and the obligations
issued hereunder are solely corporate obligations of the Company, and that no such personal liability whatever shall attach to, or is
or shall be incurred by, the incorporators, stockholders, officers or directors, as such, of the Company or any successor corporation,
or any of them, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or
agreements contained in this Indenture or in any of the Debt Securities or any coupon or implied therefrom; and that any and all such
personal liability, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director, as such, because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Debt Securities or any coupon
or implied, therefrom are hereby expressly waived and released as a condition of and as a consideration for, the execution of this Indenture
and the issue of such Debt Securities.
ARTICLE TWO
Debt Security Forms
Section 201. Forms Generally.
The Registered Securities, if
any, and the Bearer Securities and related coupons, if any, of each series shall be in substantially the form (including temporary or
permanent global form) as shall be established in or pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture,
and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon, as may be required
to comply with the rules of any securities exchange, or as may, consistently herewith, be determined by the officers executing such
Debt Securities or coupons, as evidenced by their signatures on the Debt Securities or coupons.
If the form of Debt Securities of any series or
coupons (including any such Global Security) is established by action taken pursuant to a Board Resolution, a copy of an appropriate record
of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such Debt Securities or coupons.
Unless otherwise specified as
contemplated by Section 301, Debt Securities in bearer form other than Debt Securities in temporary or permanent global form shall
have coupons attached.
The definitive Debt Securities
and coupons, if any, shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Debt Securities, as evidenced by the execution of such Debt Securities and coupons.
Section 202.
Form of Trustee’s Certificate of Authentication.
This is one of the Debt Securities,
of the series designated herein, described in the within-mentioned Indenture.
|
[____________________], |
|
as Trustee |
|
|
|
By |
|
|
|
Authorized Signatory |
|
|
|
Dated |
|
Section 203. Debt Securities in
Global Form.
If Debt Securities of a series
are issuable in whole or in part in global form, as specified as contemplated by Section 301, then, notwithstanding clause (10) of
Section 301 and the provisions of Section 302, such Global Security shall represent such of the outstanding Debt Securities
of such series as shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding Debt Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding Debt Securities represented thereby may from time to time
be reduced to reflect exchanges. Any endorsement of a Global Security to reflect the amount, or any increase or decrease in the amount,
of Outstanding Debt Securities represented thereby shall be made in such manner and upon instructions given by such Person or Persons
as shall be specified therein or in the Company Order to be delivered to the Trustee pursuant to Section 303 or Section 304.
The provisions of the last
sentence of Section 303(g) shall apply to any Debt Securities represented by a Debt Security in global form if such Debt
Security was never issued and sold by the Company and the Company delivers to the Trustee the Debt Security in global form together
with written instructions (which need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) with
respect to the reduction in the principal amount of Debt Securities represented thereby, together with the written statement
contemplated by the last sentence of Section 303(g).
Global Securities may be issued
in either registered or bearer form and in either temporary or permanent form.
ARTICLE THREE
The Debt Securities
Section 301.
Amount Unlimited; Issuance in Series.
The aggregate principal amount
of Debt Securities which may be authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued
in one or more series. There shall be established in or pursuant to a Board Resolution, and set forth in an Officers’ Certificate,
or established in one or more indentures supplemental hereto, prior to the issuance of Debt Securities of any series:
(1) the title
of the Debt Securities of the series;
(2) the limit,
if any, upon the aggregate principal amount of the Debt Securities of the series which may be authenticated and delivered under this Indenture
(except for Debt Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Debt
Securities of the series pursuant to Section 304, 305, 306, 906, 1107 or 1303 and except for any Debt Securities which, pursuant
to Section 303, are deemed never to have been authenticated and delivered hereunder);
(3) the date
or dates on which the principal and premium, if any, of the Debt Securities of the series are payable;
(4) the rate
or rates, if any, at which the Debt Securities of the series shall bear interest, or the method or methods by which such rate or rates
may be determined, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be
payable, the Regular Record Date for the interest payable on any Registered Security on any Interest Payment Date and the circumstances,
if any, in which the Company may defer interest payments;
(5) the place
or places where, subject to the provisions of Section 1002, the principal of (and premium, if any) and interest on Debt Securities
of the series shall be payable, any Registered Securities of the series may be surrendered for registration of transfer, Debt Securities
of the series may be surrendered for exchange and notices and demands to or upon the Company in respect of the Debt Securities of the
series and this Indenture may be served and where notices to Holders pursuant to Section 106 will be published;
(6) if applicable,
the period or periods within which or the date or dates on which, the price or prices at which and the terms and conditions upon which
Debt Securities of the series may be redeemed, in whole or in part, at the option of the Company;
(7) the obligation,
if any, of the Company to redeem, repay or purchase Debt 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 Debt Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;
(8) whether Debt
Securities of the series are to be issuable as Registered Securities, Bearer Securities or both, whether Debt Securities of the series
are to be issuable with or without coupons or both and, in the case of Bearer Securities, the date as of which such Bearer Securities
shall be dated if other than the date of original issuance of the first Debt Security of such series of like tenor and term to be issued;
(9) whether the
Debt Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities and, in such case, the
Depositary for such Global Security or Securities, whether such global form shall be permanent or temporary and, if applicable, the Global
Exchange Date and Global Exchange Agent;
(10) if Debt
Securities of the series are to be issuable initially in the form of a temporary Global Security, the circumstances under which the temporary
Global Security can be exchanged for definitive Debt Securities and whether the definitive Debt Securities will be Registered and/or Bearer
Securities and will be in global form and whether interest in respect of any portion of such Global Security payable in respect of an
Interest Payment Date prior to the Global Exchange Date shall be paid to any clearing organization with respect to a portion of such Global
Security held for its account and, in such event, the terms and conditions (including any certification requirements) upon which any such
interest payment received by a clearing organization will be credited to the Persons entitled to interest payable on such Interest Payment
Date if other than as provided in this Article Three;
(11) whether, and
under what conditions, additional amounts will be payable to Holders of Debt Securities of the series pursuant to Section 1004;
(12) the denominations
in which any Registered Securities of the series shall be issuable, if other than denominations of $1,000 and any integral multiple thereof,
and the denominations in which any Bearer Securities of such series shall be issuable, if other than the denomination of $5,000;
(13) if other than
the principal amount thereof, the portion of the principal amount of Debt Securities of the series which shall be payable upon declaration
of acceleration of the Maturity thereof pursuant to Section 502;
(14) the currency
or currencies of denomination of the Debt Securities of any series, which may be in Dollars, any Foreign Currency or any composite currency,
including but not limited to the Euro, and, if any such currency of denomination is a composite currency other than the Euro, the agency
or organization, if any, responsible for overseeing such composite currency;
(15) the currency
or currencies in which payment of the principal of (and premium, if any) and interest on the Debt Securities will be made, the currency
or currencies, if any, in which payment of the principal of (and premium, if any) or the interest on Registered Securities, at the election
of each of the Holders thereof, may also be payable and the periods within which and the terms and conditions upon which such election
is to be made, and the Exchange Rate and the person who shall be the Exchange Rate Agent for the Debt Securities of such series;
(16) if payments of
principal of (and premium, if any) or interest on the Debt Securities of the series are to be made in a Foreign Currency other than the
currency in which such Debt Securities are denominated, the manner in which the Exchange Rate with respect to such payments shall be determined;
(17) any Events of
Default with respect to Debt Securities of such series, if not set forth herein;
(18) any other covenant
or warranty included for the benefit of the Debt Securities of the series in addition to (and not inconsistent with) those set forth herein
for the benefit of Debt Securities of all series, or any other covenant or warranty included for the benefit of Debt Securities of the
series in lieu of any covenant or warranty set forth herein for the benefit of Debt Securities of all series, or any provision that any
covenant or warranty set forth herein for the benefit of Debt Securities of all series shall not be for the benefit of Debt Securities
of such series, or any combination of such covenants, warranties or provisions and whether the provisions of Section 1006 will not
apply such covenants and warranties;
(19) the terms and
conditions, if any, pursuant to which the Company’s obligations under this Indenture may be terminated through the deposit of money
or Eligible Instruments as provided in Articles Four and Fifteen;
(20) the Person or
Persons who shall be Security Registrar for the Debt Securities of such series if other than the Trustee, and the place or places where
the Security Register for such series shall be maintained and the Person or Persons who will be the initial Paying Agent or Agents, if
other than the Trustee; and
(21) any other terms
of the series (which terms shall not be inconsistent with the provisions of this Indenture).
All Debt Securities of any one
series and the coupons appertaining to Bearer Securities of such series, if any, shall be substantially identical except, in the case
of Registered Securities, as to denomination and except as may otherwise be provided in or pursuant to such Board Resolution and set forth
in such Officers’ Certificate or in any such indenture supplemental hereto.
Debt Securities of any particular
series may be issued at various times, with different dates on which the principal or any installment of principal is payable, with different
rates of interest, if any, or different methods by which rates of interest may be determined, with different dates on which such interest
may be payable and with different Redemption or Repayment Dates and may be denominated in different currencies or payable in different
currencies.
If any of the terms of a series
of Debt Securities are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall
be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the
Officers’ Certificate setting forth the terms of the series.
Section 302.
Denominations.
Debt Securities of each series
shall be issuable in such form and denominations as shall be specified in the form of Debt Security for such series approved or established
pursuant to Section 201 or in the Officers’ Certificate delivered pursuant to Section 301. In the absence of any specification
with respect to the Debt Securities of any series, the Registered Securities of such series, if any, shall be issuable in denominations
of $1,000 and any integral multiple thereof and the Bearer Securities of such series, if any, shall be issuable in denominations of $5,000.
Section 303.
Execution, Authentication, Delivery and Dating.
(a) The Debt Securities
shall be executed on behalf of the Company by its Chairman of the Board, a Vice Chairman of the Board, the President or a Vice President,
and by its Treasurer or one of its Assistant Treasurers or its Secretary or one of its Assistant Secretaries under its corporate seal
reproduced thereon. The signature of any of these officers on the Debt Securities may be manual or facsimile. Coupons shall bear the facsimile
signature of an authorized officer of the Company.
Debt Securities and coupons
bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such
Debt Securities or coupons of any series or did not hold such offices at the date of such Debt Securities or coupons.
(b) At any time and from
time to time after the execution and delivery of this Indenture, Debt Securities of any series may be executed by the Company and delivered
to the Trustee for authentication, and, except as otherwise provided in this Article Three, shall thereupon be authenticated and
delivered by the Trustee upon Company Order, without any further action by the Company; provided, however, that, in connection
with its original issuance, a Bearer Security may be delivered only outside the United States and, except in the case of a temporary Global
Security, only if the Company or its agent shall have received the certification required pursuant to Sections 304(b)(iii) and (iv),
unless such certification shall have been provided earlier pursuant to section 304(b)(v) hereof, and only if the Company has no reason
to know that such certification is false.
To the extent authorized in
or pursuant to a Board Resolution and set forth in an Officers’ Certificate, or established in one or more indentures supplemental
hereto, such written Company Order may be given by any one officer or employee of the Company, may be electronically transmitted, and
may provide instructions as to registration of holders, principal amounts, rates of interest, maturity dates and other matters contemplated
by such Board Resolution and Officers’ Certificate or supplemental indenture to be so instructed in respect thereof. Before authorizing
and delivering the first Debt Securities of any series (and upon request of the Trustee thereafter), the Company shall deliver to the
Trustee (i) the certificates called for under Sections 201 and 301 hereof and (ii) an Opinion of Counsel described in the next
sentence.
In authenticating such Debt
Securities, and accepting the additional responsibilities under this Indenture in relation to any such Debt Securities, the Trustee shall
be entitled to receive, prior to the initial authentication of such Debt Securities, and (subject to Section 601) shall be fully
protected in relying upon:
(i) a Board
Resolution relating thereto and, if applicable, an appropriate record of any action taken pursuant to such resolution certified by the
Secretary or an Assistant Secretary of the Company;
(ii) an executed
supplemental indenture, if any, relating thereto;
(iii) an Officers’
Certificate setting forth the form and terms of the Debt Securities of such series and coupons, if any, pursuant to Sections 201 and 301
and stating that all conditions precedent provided for in this Indenture relating to the issuance of such Debt Securities have been complied
with; and
(iv) an Opinion
of Counsel stating
(A) that the
form of such Debt Securities and coupons, if any, has been established in or pursuant to a Board Resolution or by a supplemental indenture
as permitted by Section 201 in conformity with the provisions of this Indenture;
(B) that the
terms of such Debt Securities and coupons, if any, have been established in or pursuant to a Board Resolution or by a supplemental indenture
as permitted by Section 301 in conformity with the provisions of this Indenture; and
(C) that such
Debt Securities and coupons, if any, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject
to any conditions specified in such Opinion of Counsel, will constitute legal, valid and binding obligations of the Company, enforceable
in accordance with their terms, subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors’ rights generally and the application of general principles of equity and except further as enforcement
thereof may be limited by (i) requirements that a claim with respect to any Debt Securities denominated other than in Dollars (or
a Foreign Currency or currency unit judgment in respect of such claim) be converted into Dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law or (ii) governmental authority to limit, delay or prohibit the making of payments in Foreign
Currencies or currency units or payments outside the United States.
(c) If the Company shall
establish pursuant to Section 301 that the Debt Securities of a series are to be issued in whole or in part in the form of one or
more Global Securities, then the Company shall execute and the Trustee shall, in accordance with this Section and the Company Order
with respect to such series, authenticate and deliver one or more Global Securities in permanent or temporary form that (i) shall
represent and shall be denominated in an aggregate amount equal to the aggregate principal amount of the Outstanding Debt Securities of
such series to be represented by one or more Global Securities, (ii) shall be registered in the name of the Depositary for such Global
Security or Securities or the nominee of such Depositary and (iii) shall be delivered by the Trustee to such Depositary or pursuant
to such Depositary’s instructions.
(d) The Trustee shall have
the right to decline to authenticate and deliver any Debt Securities under this Section 303 if the issuance of such Debt Securities
will adversely affect the Trustee’s own rights, duties or immunities under the Debt Securities and this Indenture or otherwise in
a manner which is not reasonably acceptable to the Trustee.
(e) If all the Debt Securities
of any series are not to be issued at one time, it shall not be necessary to deliver an Opinion of Counsel at the time of issuance of
each Debt Security, but such Opinion of Counsel, with appropriate modifications, may instead be delivered at or prior to the time of the
first issuance of Debt Securities of such series.
(f) Each Registered Security
shall be dated the date of its authentication. Each Bearer Security shall be dated as of the date specified as contemplated by Section 301.
(g) No Debt Security or
coupon attached thereto shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless there
appears on such Debt Security a certificate of authentication substantially in the form provided for herein executed by the Trustee, and
such certificate upon any Debt Security shall be conclusive evidence, and the only evidence, that such Debt Security has been duly authenticated
and delivered hereunder. Except as permitted by Section 306, the Trustee shall not authenticate and deliver any Bearer Security unless
all related coupons for interest then matured have been detached and cancelled. Notwithstanding the foregoing, if any Debt Security or
portion thereof shall have been duly authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall
deliver such Debt Security to the Trustee for cancellation as provided in Section 309 together with a written statement (which need
not comply with Section 102 and need not be accompanied by an Opinion of Counsel) stating that such Debt Security or portion thereof
has never been issued and sold by the Company, for all purposes of this Indenture such Debt Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
(h) Each Depositary designated
pursuant to Section 301 for a Global Security in registered form must, at the time of its designation and at all times while it serves
as Depositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Section 304.
Temporary Debt Securities.
(a) Pending the
preparation of definitive Debt Securities of any series, the Company may execute, and upon receipt of documents required by Sections
301 and 303, together with a Company Order, the Trustee shall authenticate and deliver, temporary Debt Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any denomination, substantially of the tenor and terms of the
definitive Debt Securities in lieu of which they are issued in registered form or, if authorized, in bearer form with one or more
coupons or without coupons, and with such appropriate insertions, omissions, substitutions and other variations as the officers
executing such Debt Securities may determine, as evidenced by their signatures on such Debt Securities. In the case of Debt
Securities of any series issuable as Bearer Securities, such temporary Debt Securities may be in global form, representing all or
any part of the Outstanding Debt Securities of such series.
(b) Unless otherwise provided
pursuant to Section 301:
(i) Except
in the case of temporary Debt Securities in global form, if temporary Debt Securities of any series are issued, the Company will cause
definitive Debt Securities of such series to be prepared without unreasonable delay. After the preparation of definitive Debt Securities
of such series, the related temporary Debt Securities shall be exchangeable for such definitive Debt Securities upon surrender of the
temporary Debt Securities of such series at the office or agency of the Company in the Place of Payment for such series, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary Debt Securities of any series (accompanied, if applicable,
by all unmatured coupons and all matured coupons in default appertaining thereto), the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a like principal amount of definitive Debt Securities of the same series of like tenor and terms and
of authorized denominations; provided, however, that no Bearer Security shall be delivered in exchange for a Registered Security;
and provided, further, that a Bearer Security shall be delivered in exchange for a Bearer Security only in compliance with the
conditions set forth in Section 305.
(ii) If Debt
Securities of any series are issued in temporary global form, any such temporary Global Security shall, unless otherwise provided pursuant
to Section 301, be delivered to the Depositary for the benefit of Euroclear and Clearstream, for credit to the respective accounts
of the beneficial owners of such Debt Securities (or to such other accounts as they may direct).
(iii) Without
unnecessary delay but in any event not later than the date specified in, or determined pursuant to the terms of, any such temporary
Global Security (the “Global Exchange Date”), the Company shall deliver definitive Debt Securities to the Trustee or the
agent appointed by the Company pursuant to Section 301 to effect the exchange of the temporary Global Security for definitive
Debt Securities (the “Global Exchange Agent”), in an aggregate principal amount equal to the principal amount of such
temporary Global Security, executed by the Company. On or after the Global Exchange Date, such temporary Global Security shall be
surrendered by the Depositary to the Global Exchange Agent, to be exchanged, in whole or from time to time in part, for definitive
Debt Securities without charge and the Trustee or the Global Exchange Agent, if authorized by the Trustee pursuant to
Section 614, shall authenticate and deliver, in exchange for each portion of such temporary Global Security, an equal aggregate
principal amount of definitive Debt Securities of the same series of authorized denominations and of like tenor and terms as the
portion of such temporary Global Security to be exchanged. Upon any exchange of a part of such temporary Global Security for
definitive Debt Securities, the portion of the principal amount and any interest thereon so exchanged shall be endorsed by the
Global Exchange Agent on a schedule to such temporary Global Security, whereupon the principal amount and interest payable with
respect to such temporary Global Security shall be reduced for all purposes by the amount so exchanged and endorsed. The definitive
Debt Securities to be delivered in exchange for any such temporary Global Security shall be in bearer form, registered form, global
registered form or global bearer form, or any combination thereof, as specified as contemplated by Section 301, and, if any
combination thereof is so specified, as requested by the beneficial owner thereof; provided, however, that, in the case of
the exchange of the temporary Global Security for definitive Bearer Securities (including a definitive Global Bearer Security), upon
such presentation by the Depositary, such temporary Global Security shall be accompanied by a certificate signed by Euroclear as to
the portion of such temporary Global Security held for its account then to be exchanged and a certificate signed by Clearstream as
to the portion of such temporary Global Security held for its account then to be exchanged, each in the form set forth in
Exhibit B to this Indenture, unless such certificate(s) shall have been provided earlier pursuant to section
304(b)(v) hereof; and provided, further, that definitive Bearer Securities (including a definitive Global Bearer
Security) shall be delivered in exchange for a portion of a temporary Global Security only in compliance with the requirements of
Section 303.
(iv) The interest
of a beneficial owner of Debt Securities of a series in a temporary Global Security shall be exchanged for definitive Debt Securities
of the same series and of like tenor and terms following the Global Exchange Date when the account holder instructs Euroclear or Clearstream,
as the case may be, to request such exchange on such account holder’s behalf and, in the case of the exchange of the temporary Global
Security for definitive Bearer Securities (including a definitive Global Bearer Security), unless such certificate(s) shall have
been provided earlier pursuant to Section 304(b)(v) hereof, the account holder delivers to Euroclear or Clearstream, as the
case may be, a certificate in the form set forth in Exhibit A-1 and, if applicable, A-2 to this Indenture, dated no earlier than
15 days prior to the Global Exchange Date, copies of which certificate shall be available from the offices of Euroclear and Clearstream,
the Global Exchange Agent, any authenticating agent appointed for such series of Debt Securities and each Paying Agent. Unless otherwise
specified in such temporary Global Security, any such exchange shall be made free of charge to the beneficial owners of such temporary
Global Security, except that a Person receiving definitive Debt Securities must bear the cost of insurance, postage, transportation and
the like in the event that such Person does not take delivery of such definitive Debt Securities in person at the offices of Euroclear
and Clearstream. Definitive Debt Securities in bearer form to be delivered in exchange for any portion of a temporary Global Security
shall be delivered only outside the United States.
(v) Until exchanged
in full as hereinabove provided, the temporary Debt Securities of any series shall in all respects be entitled to the same benefits under
this Indenture as definitive Debt Securities of the same series and of like tenor and terms authenticated and delivered hereunder, except
that interest payable on a temporary Global Security on an Interest Payment Date shall be payable to Euroclear and Clearstream on such
Interest Payment Date only if there has been delivered by Euroclear and Clearstream to the Global Exchange Agent a certificate or certificates
in the form set forth in Exhibit B to this Indenture dated no earlier than the first Interest Payment Date, for credit without further
interest on or after such Interest Payment Date to the respective accounts of the Persons who are the beneficial owners of such temporary
Global Security on such Interest Payment Date and who have each delivered to Euroclear or Clearstream, as the case may be, a certificate
in the form set forth in Exhibit A-1 and, if applicable, A-2 to this Indenture dated no earlier than the first Interest Payment Date.
Any interest so received by Euroclear and Clearstream and not paid as herein provided prior to the Global Exchange Date shall be returned
to the Global Exchange Agent which, upon expiration of two years after such Interest Payment Date, shall repay such interest to the Company
in accordance with Section 1003.
Section 305.
Registration; Registration of Transfer and Exchange.
The Company shall cause to be
kept at one of the offices or agencies to be maintained by the Company in accordance with the provisions of this Section 305 and
Section 1002, with respect to the Debt Securities of each series which are Registered Securities, a register (herein sometimes referred
to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Registered Securities and of transfers of Registered Securities. Pursuant to Section 301, the Company shall
appoint, with respect to Debt Securities of each series which are Registered Securities, a “Security Registrar” for the purpose
of registering such Debt Securities and transfers and exchanges of such Debt Securities as herein provided.
Upon surrender for registration
of transfer of any Registered Security of any series at the office or agency of the Company maintained for such purpose, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered
Securities of the same series of any authorized denomination or denominations, of like tenor and terms and aggregate principal amount.
At the option of the Holder,
Registered Securities of any series may be exchanged for other Registered Securities of the same series of any authorized form and denomination,
of like tenor and terms and aggregate principal amount, upon surrender of the Registered Securities to be exchanged at such office or
agency. Bearer Securities may not be delivered in exchange for Registered Securities.
At the option of the Holder,
Registered Securities or Bearer Securities of any series may be issued in exchange for Bearer Securities (except as otherwise specified
as contemplated by Section 301 with respect to a Bearer Security in global form) of the same series, of any authorized denominations
and of like tenor and terms and aggregate principal amount, upon surrender of the Bearer Securities to be exchanged at any such office
or agency, with all unmatured coupons and all matured coupons in default thereto appertaining. If the Holder of a Bearer Security is unable
to produce any such unmatured coupon or coupons or matured coupon or coupons in default, such exchange may be effected if the Bearer Securities
are accompanied by payment in funds acceptable to the Company and the Trustee in an amount equal to the face amount of such missing coupon
or coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if there be furnished to them
such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to any Paying Agent any such missing coupon in respect of which such a payment shall have been made, such Holder shall
be entitled to receive the amount of such payment; provided, however, that, except as otherwise provided in Section 1002,
interest represented by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at any such office or
agency in exchange for a Registered Security of the same series and like tenor and terms after the close of business at such office or
agency on (i) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such office or agency on the related date for payment
of Defaulted Interest, such Bearer Security shall be surrendered without the coupon relating to such Interest Payment Date or proposed
date of payment, as the case may be.
Whenever any Debt Securities
are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Debt Securities which
the Holder making the exchange is entitled to receive.
If at any time the Depositary
for the Debt Securities of a series notifies the Company that it is unwilling or unable to continue as Depositary for the Debt Securities
of such series or if at any time the Depositary for the Debt Securities of such series shall no longer be eligible under Section 303(h),
the Company shall appoint a successor Depositary with respect to the Debt Securities of such series. If a successor Depositary for the
Debt Securities of such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, the Company’s election pursuant to Section 301(9) shall no longer be effective with respect to
the Debt Securities of such series and the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of definitive Debt Securities of such series, will authenticate and deliver, Debt Securities of such series in definitive
form in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange
for such Global Security or Securities.
The Company may at any time
and in its sole discretion determine that the Debt Securities of any series issued in the form of one or more Global Securities shall
no longer be represented by such Global Security or Securities. In such event the Company will execute, and the Trustee, upon receipt
of a Company Order for the authentication and delivery of definitive Debt Securities of such series, will authenticate and deliver, Debt
Securities of such series in definitive form and in an aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such series in exchange for such Global Security or Securities.
If specified by the Company
pursuant to Section 301 with respect to a series of Debt Securities, the Depositary for such series of Debt Securities may surrender
a Global Security for such series of Debt Securities in exchange in whole or in part for Debt Securities of such series of like tenor
and terms and in definitive form on such terms as are acceptable to the Company and such Depositary. Thereupon, the Company shall execute,
and the Trustee shall authenticate and deliver, without charge to any Holder,
(a) to each
Person specified by such Depositary a new Debt Security or Securities of the same series, of like tenor and terms and of any authorized
denominations as requested by such person in aggregate principal amount equal to and in exchange for such Person’s beneficial interest
in the Global Security; and
(b) to such
Depositary a new Global Security of like tenor and terms and in a denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal amount of Debt Securities delivered to Holders thereof.
In any exchange provided for
in any of the preceding three paragraphs, the Company will execute and the Trustee will authenticate and deliver Debt Securities (a) in
definitive registered form in authorized denominations, if the Debt Securities of such series are issuable as Registered Securities, (b) in
definitive bearer form in authorized denominations, with coupons attached, if the Debt Securities of such series are issuable as Bearer
Securities or (c) as either Registered or Bearer Securities, as shall be specified by the beneficial owner thereof, if the Debt Securities
of such series are issuable in either form; provided, however, that no definitive Bearer Security shall be delivered in exchange
for a temporary Global Security unless the Company or its agent shall have received from the person entitled to receive the definitive
Bearer Security a certificate substantially in the form set forth in Exhibit A-1 and, if applicable, A-2 hereto; and provided
further that delivery of a Bearer Security shall occur only outside the United States; and provided further that no definitive
Bearer Security will be issued if the Company has reason to know that any such certificate is false.
Upon the exchange of a Global
Security for Debt Securities in definitive form, such Global Security shall be cancelled by the Trustee. Registered Securities issued
in exchange for a Global Security pursuant to this Section shall be registered in such names and in such authorized denominations
as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct
the Trustee. The Trustee shall deliver such Registered Securities to the persons in whose names such Debt Securities are so registered.
The Trustee shall deliver Bearer Securities issued in exchange for a Global Security pursuant to this Section to the persons, and
in such authorized denominations, as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee; provided, however, that no definitive Bearer Security shall be delivered in exchange
for a temporary Global Security unless the Company or its agent shall have received from the person entitled to receive the definitive
Bearer Security a certificate substantially in the form set forth in Exhibit A-1 and, if applicable, A-2 hereto; and provided
further that delivery of a Bearer Security shall occur only outside the United States; and provided further that no definitive
Bearer Security will be issued if the Company has reason to know that any such certificate is false.
All Debt Securities issued upon
any registration of transfer or exchange of Debt Securities shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Debt Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented
or surrendered for registration of transfer or for exchange shall (if so required by the Company, the Security Registrar or the Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company, the Security Registrar and
the Trustee duly executed, by the Holder thereof or such Holder’s attorney duly authorized in writing.
No charge to any Holder shall
be made for any registration of transfer or exchange of Debt Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any transfer, registration of transfer or exchange of Debt
Securities, other than exchanges expressly provided in this Indenture to be made at the Company’s own expense or without expense
or without charge to the Holders.
The Company shall not be required
(i) to issue, register the transfer of or exchange Debt Securities of any particular series to be redeemed for a period of fifteen
days preceding the first publication of the relevant notice of redemption or, if Registered Securities are outstanding and there is no
publication, the mailing of the relevant notice of redemption of Debt Securities of such series selected for redemption under Section 1103
and ending at the close of business on the day of such mailing, or (ii) to register the transfer of or exchange any Registered Security
so selected for redemption in whole or in part, except the unredeemed portion of such Registered Security being redeemed in part, or (iii) to
exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered Security
of like tenor and terms of that series, provided that such Registered Security shall be simultaneously surrendered for redemption.
Notwithstanding anything herein
to the contrary, the exchange of Bearer Securities into Registered Securities shall be subject to applicable laws and regulations in effect
at the time of exchange; neither the Company, the Trustee nor the Security Registrar shall exchange any Bearer Securities into Registered
Securities if it has received an Opinion of Counsel that as a result of such exchanges the Company would suffer adverse consequences under
the United States Federal income tax laws and regulations then in effect and the Company has delivered to the Trustee a Company Order
directing the Trustee not to make such exchanges thereafter unless and until the Trustee receives a subsequent Company Order to the contrary.
The Company shall deliver copies of such Company Orders to the Security Registrar.
Section 306.
Mutilated, Destroyed, Lost and Stolen Debt Securities.
If (i) any mutilated Debt
Security or a Bearer Security with a mutilated coupon appertaining to it is surrendered to a Paying Agent outside the United States designated
by the Company, or, in the case of any Registered Security, to the Trustee, or (ii) the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Debt Security or coupon, and there is delivered to the Company and the
Trustee such security or indemnity as may be required by them to save each of them harmless, then, in the absence of notice to the Company
and the Trustee that such Debt Security or coupon has been acquired by a bona fide purchaser, the Company shall execute and upon its written
request the Trustee shall authenticate and deliver, in exchange for any such mutilated Debt Security or Bearer Security with a mutilated
coupon appertaining to it or to which a destroyed, lost or stolen coupon appertains (with all related coupons not destroyed, lost or stolen)
or in lieu of any such destroyed, lost or stolen Debt Security, a new Debt Security of like tenor and terms and principal amount, bearing
a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to such destroyed, lost or
stolen Debt Security or to the Debt Security to which such destroyed, lost or stolen coupon appertains; provided, however, that
any such new Bearer Security will be delivered only in compliance with the conditions set forth in Section 305.
In case any such mutilated,
destroyed, lost or stolen Debt Security or coupon has become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Debt Security, pay such Debt Security or coupon; provided, however, that payment of principal of (and
premium, if any) and any interest on Bearer Securities shall, except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States; and provided, further, that, with respect to any such coupons, interest represented
thereby (but not any additional amounts payable as provided in Section 1004), shall be payable only upon presentation and surrender
of the coupons appertaining thereto.
Upon the issuance of any new
Debt Security or coupons under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee and printing expenses)
connected therewith.
Every new Debt Security of any
series, with its coupons, if any, issued pursuant to this Section in lieu of any destroyed, lost or stolen Debt Security, or in exchange
for a Bearer Security to which a destroyed, lost or stolen coupon appertains, shall constitute an original additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Debt Security and its coupons, if any, or the destroyed, lost or stolen coupon
shall be at any time enforceable by anyone, and any such new Debt Security and coupons, if any, shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Debt Securities of that series and their coupons, if any, duly issued
hereunder.
The provisions of this Section are
exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Debt Securities or coupons.
Section 307.
Payment of Interest; Interest Rights Preserved.
Interest on any Registered 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 Registered Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for
such interest. In case a Bearer Security of any series is surrendered in exchange for a Registered Security of such series after the close
of business (at an office or agency in a Place of Payment for such series) on any Regular Record Date and before the opening of business
(at such office or agency) on the next succeeding Interest Payment Date, such Bearer Security shall be surrendered without the coupon
relating to such Interest Payment Date and interest will not be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the Holder of such coupon when due in accordance with the provisions
of this Indenture. At the option of the Company, payment of interest on any Registered Security may be made by check in the currency designated
for such payment pursuant to the terms of such Registered Security mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register or by wire transfer to an account in such currency designated by such Person in writing not later
than ten days prior to the date of such payment.
Any interest on any Registered
Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called
“Defaulted Interest”) shall forthwith cease to be payable to the registered Holder on the relevant Regular Record Date by
virtue of his having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided
in Clause (1) or (2) below:
(1) The Company
may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to
be paid on each Registered Security of such series and the date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money and/or, to the extent such Debt Securities are denominated and payable in Dollars only, Eligible Instruments
the payments of principal and interest on which when due (and without reinvestment and providing no tax liability will be imposed upon
the Trustee or the Holder of such Registered Securities) will provide money in such amounts as will (together with any money irrevocably
deposited in trust with the Trustee, without investment) be equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money
and/or Eligible Instruments when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in
this Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the written notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date.
Unless the Trustee is acting as the Security Registrar, promptly after such Special Record Date, the Company shall furnish the Trustee
with a list, or shall make arrangements satisfactory to the Trustee with respect thereto, of the names and addresses of, and principal
amounts of Registered Securities of such series held by, the Holders appearing on the Security Register at the close of business on such
Special Record Date. In the name and at the expense of the Company, the Trustee shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Registered Securities of such
series at his address as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall
be paid to the Persons in whose names the Registered Securities of such series (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (2). In case a Bearer
Security of any series is surrendered at the office or agency in a Place of Payment for such series in exchange for a Registered Security
of such series after the close of business at such office or agency on any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the
coupon relating to such proposed date of payment and Defaulted Interest will not be payable on such proposed date of payment in respect
of the Registered Security issued in exchange for such Bearer Security, but will be payable only to the Holder of such coupon when due
in accordance with the provisions of this Indenture.
(2) The Company
may make payment of any Defaulted Interest on the Registered Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Registered Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions
of this Section, each Debt Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any
other Debt Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Debt Security.
Subject to the limitations set
forth in Section 1002, the Holder of any coupon appertaining to a Bearer Security shall be entitled to receive the interest payable
on such coupon upon presentation and surrender of such coupon on or after the Interest Payment Date of such coupon at an office or agency
maintained for such purpose pursuant to Section 1002.
Section 308.
Persons Deemed Owners.
Prior to due presentment of
a Registered Security for registration of transfer, the Company, the Trustee and any agent of the Company or of the Trustee may treat
the Person in whose name such Registered Security is registered as the owner of such Registered Security for the purpose of receiving
payment of principal of (and premium, if any) and (subject to Section 307) interest on such Registered Security and for all other
purposes whatsoever, whether or not such Registered Security be overdue, and neither the Company, the Trustee nor any agent of the Company
or the Trustee shall be affected by notice to the contrary.
The Company, the Trustee and
any agent of the Company or the Trustee may treat the bearer of any Bearer Security and the bearer of any coupon as the absolute owner
of such Bearer Security or coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Bearer Security or coupon be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee,
any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments
made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
Section 309.
Cancellation
Unless otherwise provided
with respect to a series of Debt Securities, all Debt Securities and coupons surrendered for payment, redemption, repayment,
transfer, exchange or credit against any sinking fund payment pursuant to this Indenture, shall, if surrendered to the Company or
any agent of the Company, be delivered to the Trustee and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Debt Securities previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Debt Securities so delivered shall be promptly cancelled by the Trustee. No Debt
Securities shall be authenticated in lieu of or in exchange for any Debt Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Debt Securities and coupons held by the Trustee shall be destroyed and
certification of their destruction delivered to the Company unless by a Company Order the Company shall direct that the cancelled
Debt Securities or coupons be returned to it.
Section 310.
Computation of Interest
Except as otherwise specified
as contemplated by Section 301 for Debt Securities of any series, interest on the Debt Securities of each series shall be computed
on the basis of a 360-day year of twelve 30-day months.
Section 311.
Certification by a Person Entitled to Delivery of a Bearer Security.
Whenever any provision of this
Indenture or a Debt Security contemplates that certification be given by a Person entitled to delivery of a Bearer Security, such certification
shall be provided substantially in the form of Exhibit A-1 and, if applicable, A-2 hereto, with only such changes as shall be approved
by the Company and consented to by the Trustee whose consent shall not unreasonably be withheld.
Section 312.
Judgments.
The Company may provide, pursuant
to Section 301, for the Debt Securities of any series that, to the fullest extent possible under applicable law and except as may
otherwise be specified as contemplated in Section 301, (a) the obligation, if any, of the Company to pay the principal of (and
premium, if any) and interest on the Debt Securities of any series and any related coupons in a Foreign Currency, composite currency or
Dollars (the “Designated Currency”) as may be specified pursuant to Section 301 is of the essence and that judgments
in respect of such Debt Securities shall be given in the Designated Currency; (b) the obligation of the Company to make payments
in the Designated Currency of the principal of (and premium, if any) and interest on such Debt Securities and any related coupons shall,
notwithstanding any payment in any other currency (whether pursuant to a judgment or otherwise), be discharged only to the extent of the
amount in the Designated Currency that the Holder receiving such payment may, in accordance with normal banking procedures, purchase with
the sum paid in such other currency (after any premium and cost of exchange) in the country of issue of the Designated Currency in the
case of Foreign Currency or Dollars or in the international banking community in the case of a composite currency on the Business Day
immediately following the day on which such Holder receives such payment; (c) if the amount in the Designated Currency that may be
so purchased for any reason falls short of the amount originally due, the Company shall pay such additional amounts as may be necessary
to compensate for such shortfall; and (d) any obligation of the Company not discharged by such payment shall be due as a separate
and independent obligation and, until discharged as provided herein, shall continue in full force and effect.
ARTICLE FOUR
Satisfaction and Discharge
Section 401.
Satisfaction and Discharge of Indenture.
This Indenture shall upon Company
Request cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Debt Securities herein
expressly provided for and rights to receive payments of principal and interest thereon and any right to receive additional amounts, as
provided in Section 1004) and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction
and discharge of this Indenture when
(1) either
(A) all Debt
Securities theretofore authenticated and delivered and all coupons appertaining thereto (other than (i) coupons appertaining to Bearer
Securities surrendered in exchange for Registered Securities and maturing after such exchange, surrender of which is not required or has
been waived as provided in Section 305, (ii) Debt Securities and coupons which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306, (iii) coupons appertaining to Bearer Securities called for redemption
or surrendered for repayment and maturing after the relevant Redemption Date or Repayment Date, as appropriate, surrender of which has
been waived as provided in Section 1106 or 1303 and (iv) Debt Securities and coupons for whose payment money and/or Eligible
Instruments have theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee cancelled or for cancellation; or
(B) all such
Debt Securities not theretofore delivered to the Trustee for cancellation
(i) have become due and
payable, or
(ii) will become due and
payable at their Stated Maturity within one year, or
(iii) are
to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the Company, and the Company, in the case of (B)(i), (B)(ii) or
(B)(iii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose
money and/or, to the extent such Debt Securities are denominated and payable in Dollars only, Eligible Instruments the payments of
principal and interest on which when due (and without reinvestment and providing no tax liability will be imposed upon the Trustee
or the Holders of Debt Securities) will provide money in such amounts as will (together with any money irrevocably deposited in
trust with the Trustee, without investment) be sufficient to pay and discharge the entire indebtedness on such Debt Securities and
coupons of such series for principal (and premium, if any) and interest, and any mandatory sinking fund, repayment or analogous
payments thereon, on the scheduled due dates therefor to the date of such deposit (in the case of Debt Securities and coupons which
have become due and payable) or to the Stated Maturity or Redemption Date, if any, and all Repayment Dates (in the case of Debt
Securities repayable at the option of the Holders thereof); provided, however, that in the event a petition for relief under
any applicable Federal or state bankruptcy, insolvency, reorganization or other similar law is filed with respect to the Company
within 91 days after the deposit, the obligations of the Company under the Indenture with respect to the Debt Securities of such
series shall not be deemed terminated or discharged, and in such event the Trustee shall be required to return the deposited money
and Eligible Instruments then held by the Trustee to the Company;
(2) the Company has paid
or caused to be paid all other sums payable hereunder by the Company; and
(3) the Company
has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge
of this Indenture, the obligations of the Company to the Trustee under Section 607 and, if money or Eligible Instruments shall have
been deposited with the Trustee pursuant to Subclause (B) of Clause (1) of this Section, the obligations of the Trustee under
Section 402 and the last paragraph of Section 1003 shall survive such satisfaction and discharge.
Section 402. Application of Trust Money and Eligible Instruments.
(a) Subject to the provisions
of the last paragraph of Section 1003, all money and Eligible Instruments deposited with the Trustee pursuant to Section 401,
403 or 1501 shall be held in trust and such money and the principal and interest received on such Eligible Instruments shall be applied
by it, in accordance with the provisions of the Debt Securities, any coupons and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto,
of the principal (and premium, if any) and interest for whose payment such money or Eligible Instruments have been deposited with the
Trustee.
(b) The Trustee shall deliver
or pay to the Company from time to time upon Company Request any Eligible Instruments or money held by it as provided in Section 403
or 1501 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are then in excess of the amount thereof which then would have been required to be deposited for the purpose
for which such Eligible Instruments or money were deposited or received.
(c) The Trustee shall deliver
to the Company from time to time upon Company Request any Eligible Instruments held by it as provided in Section 403 or 1501, provided
that the Company in substitution therefor simultaneously delivers to the Trustee, money or other Eligible Instruments which, in the opinion
of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee,
would then be sufficient to satisfy the Company’s payment obligations in respect of the Debt Securities in the manner contemplated
by Section 403 or 1501.
Section 403. Satisfaction, Discharge and Defeasance of Debt Securities of any Series.
If this Section 403 is
specified, as contemplated by Section 301, to be applicable to Debt Securities of any series, then, notwithstanding Section 401,
(i) the Company shall be deemed to have paid and discharged the entire indebtedness on all the Outstanding Debt Securities of any
such series and related coupons; (ii) the provisions of this Indenture as it relates to such Outstanding Debt Securities and related
coupons shall no longer be in effect (except as to the rights of Holders of Debt Securities to receive, from the trust fund described
in subparagraph (1) below, payment of (x) the principal of (and premium, if any) and any installment of principal of (and premium,
if any) or interest on such Debt Securities and related coupons on the Stated Maturity of such principal (and premium, if any) or installment
of principal (and premium, if any) or interest or (y) any mandatory sinking fund, repayment or analogous payments applicable to the
Debt Securities of that series on that day on which such payments are due and payable in accordance with the terms of this Indenture and
of such Debt Securities, the Company’s obligations with respect to such Debt Securities under Sections 304, 305, 306, 1002, 1003
and 1004 and the rights, powers, trusts, duties and immunities of the Trustee hereunder, including those under Section 607 hereof);
and (iii) the Trustee, at the expense of the Company, shall, upon Company Order, execute proper instruments acknowledging satisfaction
and discharge of such indebtedness, when
(1) either
(A) with respect
to all Outstanding Debt Securities of such series and related coupons, with reference to this Section 403, the Company has deposited
or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 609 who shall agree to comply
with the provisions of this Section 403 applicable to it) irrevocably, as trust funds in trust, money and/or, to the extent such
Debt Securities are denominated and payable in Dollars only, Eligible Instruments the payments of principal and interest on which when
due (and without reinvestment and providing no tax liability will be imposed upon the Trustee or the Holders of such Debt Securities)
will provide money in such amounts as will (together with any money irrevocably deposited in trust with the Trustee, without investment)
be sufficient to pay and discharge (i) the principal of (and premium, if any) and interest on the Outstanding Debt Securities of
that series and related coupons on the Stated Maturity of such principal or interest or, if such series may be redeemed by the Company
prior to the Stated Maturity thereof, and the Company shall have given irrevocable instructions to the Trustee to effect such redemption,
at the date fixed for such redemption pursuant to Article Eleven, and (ii) any mandatory sinking fund payments or analogous
payments applicable to Debt Securities of such series on the date on which such payments are due and payable in accordance with the terms
of this Indenture and of such Debt Securities; or
(B) the Company
has properly fulfilled such other means of satisfaction and discharge as is specified, as contemplated by Section 301, to be applicable
to the Debt Securities of such series;
(2) the Company
has paid or caused to be paid all sums payable with respect to the Outstanding Debt Securities of such series and related coupons;
(3) such deposit
will not result in a breach of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company
is a party or by which it is bound;
(4) no Event
of Default or event which, with the giving of notice or lapse of time, or both, would become an Event of Default pursuant to Section 501(1),
(2), (3), (5) or (6) with respect to the Debt Securities of such series shall have occurred and be continuing on the date of
such deposit and no Event of Default under Section 501(5) or Section 501(6) or event which, with the giving of notice
or lapse of time, or both, would become an Event of Default under Section 501(5) or Section 501(6) shall have occurred
and be continuing on the 91st day after such date; provided, however, that should that condition fail to be satisfied
on or before such 91st day, the Trustee shall promptly, upon satisfactory receipt of evidence of such failure, return such
deposit to the Company;
(5) the Company
has delivered to the Trustee an Opinion of Counsel to the effect that (a) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling, or (b) since the date of this Indenture there has been a change in applicable Federal
income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of Debt Securities
and related coupons of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income tax on the same amount and in the same manner and at the same times as
would have been the case if such deposit, defeasance and discharge had not occurred;
(6) if the
Debt Securities of that series are then listed on any domestic or foreign securities exchange, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that such deposit, defeasance and discharge will not cause such Debt Securities to be delisted;
(7) such deposit
shall have been effected in compliance with any additional terms, conditions or limitations which may be imposed on the Company in connection
therewith pursuant to Section 301; and
(8) the Company
has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of the entire indebtedness of all Outstanding Debt Securities and related coupons
have been complied with.
Any deposits with the Trustee
referred to in Section 403(1)(A) above shall be irrevocable and shall be made under the terms of an escrow or trust agreement
in form and substance satisfactory to the Trustee. If any Outstanding Debt Securities of such series are to be redeemed prior to their
Stated Maturity, whether pursuant to any optional redemption provisions or in accordance with any mandatory sinking fund requirement,
the applicable escrow or trust agreement shall provide therefor and the Company shall make such arrangements as are satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Upon the satisfaction of the
conditions set forth in this Section 403 with respect to all the Outstanding Debt Securities of any series, the terms and conditions
of such series, including the terms and conditions with respect thereto set forth in this Indenture, shall no longer be binding upon,
or applicable to, the Company; provided that the Company shall not be discharged from any payment obligations in respect of Debt
Securities of such series which are deemed not to be Outstanding under clause (iii) of the definition thereof if such obligations
continue to be valid obligations of the Company under applicable law.
Notwithstanding the cessation,
termination and discharge of all obligations, covenants and agreements (except as provided above in this Section 403) of the Company
under this Indenture with respect to any series of Debt Securities, the obligations of the Company to the Trustee under Section 607,
and the obligations of the Trustee under Section 402 and the last paragraph of Section 1003, shall survive with respect to such
series of Debt Securities.
ARTICLE FIVE
Remedies
Section 501.
Events of Default
“Event of Default”,
wherever used herein with respect to Debt Securities of any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law, pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) default in
the payment of any interest upon any Debt Security of such series or a related coupon, if any, when it becomes due and payable, and continuance
of such default for a period of 30 days; or
(2) default in
the payment of the principal of (or premium, if any, on) any Debt Security of such series at its Maturity; or
(3) default in
the deposit of any sinking fund payment, when and as due by the terms of a Debt Security of such series; or
(4) default in
the performance, or breach, of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty a default
in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included in
this Indenture solely for the benefit of Debt Securities of a series other than such series), and continuance of such default or breach
for a period of 90 days after there has been given by registered or certified mail, to the Company by the Trustee, or to the Company and
the Trustee by the Holders of at least 25% in principal amount of the Outstanding Debt Securities of such series, a written notice specifying
such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
(5) the entry
by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or state bankruptcy, insolvency, reorganization or other similar law or (B) a decree or
order adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company under any applicable Federal or State law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or ordering the winding
up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive days; or
(6) the commencement
by the Company of a voluntary case or proceeding under any applicable Federal or state bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree
or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State law, or the consent by
it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of any substantial part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking
of corporate action by the Company in furtherance of any such action; or
(7) any other
Event of Default, if any, provided with respect to Debt Securities of such series specified as contemplated by Section 301.
Section 502.
Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with
respect to Debt Securities of any series at the time Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of Outstanding Debt Securities of such series may declare the principal amount (or,
if the Debt Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be specified
in the terms of such series) of and all accrued but unpaid interest on all the Debt Securities of such series to be due and payable immediately,
by a notice in writing to the Company (and to the Trustee if given by such Holders), and upon any such declaration such principal amount
(or specified amount) shall become immediately due and payable. Upon payment of such amount, all obligations of the Company in respect
of the payment of principal of the Debt Securities of such series shall terminate.
At any time after such a declaration
of acceleration with respect to Debt Securities of any series has been made and before a judgment or decree for payment of the money due
has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding
Debt Securities of such series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences
if
(1) the Company
has paid or deposited with the Trustee a sum sufficient to pay
(A) all overdue
installments of interest on all Debt Securities of such series and any related coupons,
(B) the principal
of (and premium, if any, on) any Debt Securities of such series which have become due otherwise than by such declaration of acceleration
and interest thereon at the rate or rates prescribed therefor in such Debt Securities,
(C) to the extent
that payment of such interest is lawful, interest upon overdue installments of interest on each Debt Security and any related coupons
at the rate or rates prescribed therefor in such Debt Securities, and
(D) all sums paid
or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel;
and
(2) all Events
of Default with respect to Debt Securities of such series, other than the non-payment of the principal of Debt Securities of such series
which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent
default or impair any right consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is
made in the payment of any installment of interest on any Debt Security or any related coupon when such interest becomes due and payable
and such default continues for a period of 30 days, or
(2) default is
made in the payment of the principal of (or premium, if any, on) any Debt Security at the Maturity thereof,
the Company will, upon demand of the Trustee,
pay to it, for the benefit of the Holders of such Debt Securities and any related coupons, the amount then due and payable on such Debt
Securities and coupons for principal (and premium, if any) and interest and, to the extent that payment of such interest shall be legally
enforceable, interest upon the overdue principal (and premium, if any) and, upon overdue installments of interest, at the rate or rates
prescribed therefor in such Debt Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay
such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding
for the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Debt Securities and coupons and collect the moneys adjudged or decreed to be payable
in the manner provided by law out of the property of the Company or any other obligor upon such Debt Securities and coupons, wherever
situated.
If an Event of Default with
respect to Debt Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Debt Securities of such series and any related coupons by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant
or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 504.
Trustee May File Proofs of Claim.
In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceedings,
or any voluntary or involuntary case under the Federal bankruptcy laws as now or hereafter constituted, relative to the Company or any
other obligor upon the Debt Securities of a particular series or any related coupons or the property of the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal of such Debt Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment
of overdue principal or interest) shall be entitled and empowered, by intervention in such proceedings or otherwise,
(1) to file and
prove a claim for the whole amount of principal (and premium, if any) and interest owing and unpaid in respect of the Debt Securities
of such series and any related coupons and to file such other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding, and
(2) to collect
and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian,
liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee
any amount due 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 607.
Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Debt Securities or any coupons or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
Section 505.
Trustee May Enforce Claims without Possession of Debt Securities or Coupons.
All rights of action and claims
under this Indenture or the Debt Securities or coupons may be prosecuted and enforced by the Trustee without the possession of any of
the Debt Securities or coupons or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name, as trustee of an express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable
benefit of the Holders of the Debt Securities and coupons in respect of which such judgment has been recovered.
Section 506.
Application of Money Collected.
Any money collected by the Trustee
pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution
of such money on account of principal (and premium, if any) or interest, upon presentation of the Debt Securities or any coupons, or both,
as the case may be, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment
of all amounts due the Trustee under Section 607;
SECOND: To the payment
of the amounts then due and unpaid for principal of (and premium, if any) and interest on the Debt Securities and any coupons, 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 Debt Securities and any coupons for principal (and premium, if any) and interest, respectively. The Holders
of each series of Debt Securities denominated in Euro, any other composite currency or a Foreign Currency and any matured coupons relating
thereto shall be entitled to receive a ratable portion of the amount determined by the Exchange Rate Agent by converting the principal
amount Outstanding of such series of Debt Securities and matured but unpaid interest on such series of Debt Securities in the currency
in which such series of Debt Securities is denominated into Dollars at the Exchange Rate as of the date of declaration of acceleration
of the Maturity of the Debt Securities; and
THIRD: The balance,
if any, to the Company.
Section 507.
Limitation on Suits
No Holder of any Debt Securities
of any series or any related coupons shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder
has previously given written notice to the Trustee of a continuing Event of Default with respect to the Debt Securities of such series;
(2) the Holders
of not less than 25% in principal amount of the Outstanding Debt Securities of such series shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder
or Holders have offered to the Trustee reasonable indemnity satisfactory to it against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee
for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction
inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Debt Securities of such series;
it being understood and intended that no one or
more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other such Holders, or to obtain or to seek to obtain priority or preference over any other of
such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit
of all of such Holders.
Section 508.
Unconditional Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other provision
in this Indenture, the Holder of any Debt Security or coupon shall have the right which is absolute and unconditional to receive payment
of the principal of (and premium, if any) and (subject to Section 307) interest on such Debt Security or payment of such coupon on
the respective Stated Maturity or Maturities expressed in such Debt Security or coupon (or, in the case of redemption or repayment, on
the Redemption Date or the Repayment Date, as the case may be) and to institute suit for the enforcement of any such payment, and such
right shall not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder
has instituted any proceedings to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned
for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case the Company, the Trustee
and the Holders shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 510.
Rights and Remedies Cumulative.
Except as otherwise provided
in Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every
other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 511.
Delay or Omission Not Waiver
No delay or omission of the
Trustee or of any Holder of any Debt Security or coupon to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given
by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient,
by the Trustee or by the Holders, as the case may be.
Section 512.
Control by Holders of Debt Securities.
The Holders of a majority in
principal amount of the Outstanding Debt Securities of any series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Debt
Securities of such series, provided, that
(1) such direction
shall not be in conflict with any rule of law or with this Indenture;
(2) subject to
the provisions of Section 601, the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer or Responsible Officers of the Trustee, determine that the proceedings so directed would be unjustly prejudicial
to the Holders of Debt Securities of such series not joining in any such direction; and
(3) the Trustee
may take any other action deemed necessary by the Trustee which is not inconsistent with such direction.
Section 513.
Waiver of Past Defaults
The Holders of not less than
a majority in principal amount of the Outstanding Debt Securities of any series may on behalf of the Holders of all the Debt Securities
of any such series and any related coupons waive any past default hereunder with respect to such series and its consequences, except a
default
(1) in the payment
of the principal of (or premium, if any) or interest on any Debt Security of such series, or
(2) in respect
of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Debt Security of such series or coupons affected.
Upon any such waiver, such default
shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture;
but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 514.
Undertaking for Costs.
All parties to this Indenture
agree, and each Holder of any Debt Security or coupon by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having a due regard to the merits and good faith of the claims or defenses made by
such party litigant, but the provisions of this Section shall not apply to any suit instituted by the Company or the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding
Debt Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on any Debt Security or the payment of any coupons on or after the respective Stated Maturity or Maturities expressed
in such Debt Security or coupon (or, in the case of redemption or repayment, on or after the Redemption Date or Repayment Date, as the
case may be).
Section 515.
Waiver of Stay or Extension Laws.
The Company covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension law whenever enacted, now or at any time hereafter in force, which may affect the covenants or
the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefits 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.
ARTICLE SIX
The Trustee
Section 601.
Certain Duties and Responsibilities.
(a) Except during the continuance
of an Event of Default,
(i) the Trustee
undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(ii) in
the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated
therein).
(b) In case 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 circumstances in the conduct
of his or her own affairs.
(c) No provision of this
Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or
its own willful misconduct, except that
(i) this subsection
shall not be construed to limit the effect of subsection (a) of this Section 601;
(ii) the Trustee
shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts;
(iii) the Trustee
shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the
Holders of a majority in principal amount of the Outstanding Debt Securities of any series, determined as provided in Sections 101, 104
and 512, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture with respect to the Debt Securities of such series; and
(iv) no provision
of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or powers.
(d) Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection
to the Trustee shall be subject to the provisions of this Section.
Section 602.
Notice of Default.
If a default occurs hereunder
with respect to Debt Securities of any series the Trustee shall transmit by mail to all Holders of Debt Securities of such series notice
of such default as and to the extent provided by the Trust Indenture Act; provided, however, that in the case of any default of
the character specified in Section 501(4) with respect to Debt Securities of such series no such notice to Holders shall be
given until at least 30 days after the occurrence thereof; and provided further, that, except in the case of a default in the payment
of principal of (or premium, if any) or interest on any Debt Security of such series or related coupons or in the payment of any sinking
fund installment with respect to Debt Securities of such series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of directors and/or a Responsible Officer of the Trustee in good
faith determines that the withholding of such notice is in the interest of the Holders of the Debt Securities of such series. For the
purpose of this Section, the term “default” means any event which is, or after notice or lapse of time or both would become,
an Event of Default with respect to Debt Securities of such series.
Section 603.
Certain Rights of Trustee.
Except as otherwise provided
in Section 601:
(a) the Trustee may conclusively
rely and shall be fully protected in acting or refraining from acting upon any signature, resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other paper or document (whether in its
original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction
of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board
of Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration
of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers’ Certificate;
(d) the Trustee may consult
with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be
under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders
of Debt Securities of such series or any related coupons pursuant to this Indenture, unless such Holders shall have offered to the Trustee
security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(f) the Trustee shall
not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as
it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company, personally or by agent or attorney, other than any such books or records containing
information as to the affairs of the customers of the Company or any of its subsidiaries; provided that the Trustee may
examine such books and records relating to customers to the extent that such books and records contain information as to any
payments made to such customers in their capacity as Holders of Debt Securities; and provided further that the Trustee shall
incur no liability or additional liability of any kind by reason of such inquiry or investigation; and
(g) the Trustee may execute
any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
no Exchange Rate Agent, Global Exchange Agent, Depositary or Paying Agent shall be deemed an agent of the Trustee and the Trustee shall
not be responsible for any act or omission by any of them.
Section 604.
Not Responsible for Recitals or Issuance of Debt Securities.
The recitals contained herein
and in the Debt Securities, except the Trustee’s certificates of authentication, and in any coupons, and the information in any
registration statement, including all attachments thereto, except information provided by the Trustee therein, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Debt Securities of any series or any coupons. The Trustee shall not be accountable for the
use or application by the Company of any Debt Securities or the proceeds thereof. The Trustee shall not be responsible for and makes no
representations as to the Company’s ability or authority to issue Bearer Securities or the lawfulness thereof.
Section 605.
May Hold Debt Securities or Coupons.
The Trustee, any Paying Agent,
the Security Registrar or any other agent of the Company or the Trustee, in its individual or any other capacity, may become the owner
or pledgee of Debt Securities and coupons, and, subject to Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Security Registrar or such agent.
Section 606.
Money Held in Trust.
Money held by the Trustee or
any Paying Agent in trust hereunder need not be segregated from other funds except to the extent required by law. Neither the Trustee
nor any Paying Agent shall be under any liability for interest on any money received by it hereunder except as otherwise agreed with the
Company.
Section 607.
Compensation and Reimbursement.
The Company agrees
(1) to pay
to the Trustee from time to time such compensation for all services rendered by it hereunder which shall have been separately agreed to
from time to time in writing by the Company and the Trustee (which compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(2) except
as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence
or willful misconduct; and
(3) to fully
indemnify the Trustee for, and to hold it harmless against, any and all claims, losses, liabilities, damages or expenses (including taxes
other than taxes based upon the income of the Trustee) incurred without negligence or willful misconduct on its part, arising out of or
in connection with the acceptance or administration of this trust or performance of its duties hereunder, including the costs and expenses
of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.
As security for the performance
of the obligations of the Company under this Section the Trustee shall have a claim prior to the Debt Securities and any coupons
upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (and
premium, if any) or interest on particular Debt Securities or any coupons.
Section 608.
Disqualification; Conflicting Interests.
If the Trustee has or shall
acquire any conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting interest with respect to Debt Securities of any series by
virtue of being a trustee under this Indenture with respect to any particular series of Debt Securities.
Section 609.
Corporate Trustee Required; Eligibility.
There shall at all times
be a Trustee hereunder which shall be a corporation that is eligible pursuant to the Trust Indenture Act to act as such and
organized and doing business under the laws of the United States, any State thereof or the District of Columbia, authorized under
such laws to exercise corporate trust powers, having a combined capital and surplus of at least $5,000,000, and subject to
supervision or examination by Federal or State authority; provided, however, that if Section 310(a) of the Trust
Indenture Act or the rules and regulations of the Commission under the Trust Indenture Act at any time permit a corporation
organized and doing business under the laws of any other jurisdiction to serve as trustee of an indenture qualified under the Trust
Indenture Act, this Section 609 shall be automatically amended to permit a corporation organized and doing business under the
laws of any such other jurisdiction to serve as Trustee hereunder. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign promptly in the manner and with the effect hereinafter specified in this Article.
Section 610.
Resignation and Removal; Appointment of Successor.
(a) No resignation or removal
of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 611.
(b) The Trustee may resign
at any time with respect to the Debt Securities of one or more series by giving written notice thereof to the Company. If an instrument
of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Debt Securities of such series.
(c) The Trustee may be
removed at any time with respect to the Debt Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding
Debt Securities of such series, delivered to the Trustee and to the Company. If an instrument of acceptance by a successor Trustee shall
not have been delivered to the Trustee within 30 days of receipt of such Act specifying removal, the removed Trustee may petition at the
expense of the Company any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Debt Securities
of such series.
(d) If at any time:
(1) the Trustee
shall fail to comply with Section 608 with respect to the Debt Securities of any series after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Debt Security of such series for at least six months, or
(2) the Trustee
shall cease to be eligible under Section 609 with respect to any series of Debt Securities and shall fail to resign after written
request therefor by the Company or by any such Holder, or
(3) the Trustee
shall become incapable of acting with respect to any series of Debt Securities or a decree or order for relief by a court having jurisdiction
in the premises shall have been entered in respect of the Trustee in an involuntary case under the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal or State bankruptcy, insolvency or similar law; or a decree or order by a court
having jurisdiction in the premises shall have been entered for the appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator or other similar official of the Trustee or of its property or affairs, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation, winding up or liquidation, or
(4) the Trustee
shall commence a voluntary case under the Federal bankruptcy laws, as now or hereafter constituted, or any other applicable Federal or
State bankruptcy, insolvency or similar law or shall consent to the appointment of or taking possession by a receiver, custodian, liquidator,
assignee, trustee, sequestrator or other similar official of the Trustee or its property or affairs, or shall make an assignment for the
benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due, or shall take corporate action
in furtherance of any such action,
then, in any such case, (i) the Company by
a Board Resolution may remove the Trustee with respect to such series or (ii) subject to Section 514, any Holder who has been
a bona fide Holder of a Debt Security of any series for at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee for the Debt Securities of such series and the appointment
of a successor Trustee. In addition, the Company may remove the Trustee if the Company shall determine by a Board Resolution that the
services provided by the Trustee hereunder may be obtained at a substantially lower cost to the Company.
(e) If the Trustee shall
resign, be removed or become incapable of acting with respect to any series of Debt Securities, or if a vacancy shall occur in the office
of Trustee for any cause, with respect to the Debt Securities of one or more series, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee or Trustees with respect to the Debt Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Debt Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Debt Securities of any particular series) and shall comply with the applicable requirements
of Section 611. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor
Trustee with respect to the Debt Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of
the Outstanding Debt Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee with respect to the Debt Securities of such series and
to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Debt Securities of
any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner hereinafter provided, any
Holder who has been a bona fide Holder of a Debt Security of such series for at least six months may, subject to Section 514, on
behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Debt Securities of such series.
(f) The Company shall
give notice of each resignation and each removal of the Trustee with respect to the Debt Securities of any series and each
appointment of a successor Trustee with respect to the Debt Securities of any series by mailing written notice of such event by
first-class mail, postage prepaid, to the Holders of Registered Securities, if any, of such series as their names and addresses
appear in the Security Register and, if Debt Securities of such series are issuable as Bearer Securities, by publishing notice of
such event once in an Authorized Newspaper in each Place of Payment located outside the United States. Each notice shall include the
name of the successor Trustee with respect to the Debt Securities of such series and the address of its Corporate Trust Office.
Section 611.
Acceptance of Appointment by Successor.
(a) In the case of an appointment
hereunder of a successor Trustee with respect to all Debt Securities, every such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee; but, on request of the Company or the successor Trustee, such
retiring Trustee shall, upon payment of its charges due under Section 607 hereof, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the retiring Trustee, and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder.
(b) In the case of the
appointment hereunder of a successor Trustee with respect to the Debt Securities of one or more (but not all) series, the Company, the
retiring Trustee upon payment of its charges and each successor Trustee with respect to the Debt Securities of one or more series shall
execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Debt Securities of that or those series to which the appointment
of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Debt Securities, shall contain
such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Debt Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested
in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust
or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture, the resignation or removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Debt Securities of that or those series to which the appointment of such
successor Trustee relates; but, on the request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer
and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Debt Securities
of that or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any
such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee
shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
Section 612.
Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the
Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under
this Article, without the executing or filing of any paper or any further act on the part of any of the parties hereto. In case any Debt
Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion, consolidation
or sale to such authenticating Trustee may adopt such authentication and deliver the Debt Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Debt Securities. In case any Debt Securities shall not have been authenticated
by such predecessor Trustee, any such successor Trustee may authenticate and deliver such Debt Securities, in either its own name or that
of its predecessor Trustee, with the full force and effect which this Indenture provides for the certificate of authentication of the
Trustee.
Section 613.
Preferential Collection of Claims Against Company.
If and when the Trustee shall
be or shall become a creditor, directly or indirectly, secured or unsecured, of the Company (or any other obligor upon the Debt Securities),
the Trustee shall be subject to the provisions of the Trust Indenture Act regarding collection of claims against the Company (or any such
other obligor).
Section 614.
Authenticating Agent.
The Trustee shall upon
Company request appoint one or more authenticating agents with respect to one or more series of Debt Securities which shall be
authorized on behalf of the Trustee in authenticating Debt Securities of such series in connection with the issue, delivery,
registration of transfer, exchange, partial redemption or repayment of such Debt Securities. Wherever reference is made in this
Indenture to the authentication of Debt Securities by the Trustee or the Trustee’s certificate of authentication, such
reference shall be deemed to include authentication on behalf of the Trustee by an authenticating agent and a certificate of
authentication executed on behalf of the Trustee by an authenticating agent. Each authenticating agent must be acceptable to the
Company and must be a corporation organized and doing business under the laws of the United States or of any State, having a
combined capital and surplus of at least $1,000,000, authorized under such laws to do a trust business and subject to supervision or
examination by Federal or State authorities or the equivalent foreign authority in the case of an authenticating agent who is not
organized and doing business under the laws of the United States or of any State thereof or the District of Columbia.
Any corporation succeeding to
the corporate agency business of an authenticating agent shall continue to be an authenticating agent without the execution or filing
of any paper or any further act on the part of the Trustee or such authenticating agent.
An authenticating agent may
at any time resign with respect to one or more series of Debt Securities by giving written notice of resignation to the Trustee and to
the Company. The Trustee may at any time terminate the agency of any authenticating agent with respect to one or more series of Debt Securities
by giving written notice of termination to such authenticating agent and to the Company. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time an authenticating agent shall cease to be eligible in accordance with the provisions of
this Section, the Trustee promptly may appoint a successor authenticating agent. Any successor authenticating agent upon acceptance of
its appointment hereunder shall become vested with all rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an authenticating agent herein. No successor authenticating agent shall be appointed unless eligible under the provisions
of this Section.
The Trustee agrees to pay to
each authenticating agent from time to time reasonable compensation for its services under this Section, and the Trustee shall be entitled
to be reimbursed for such payment, subject to the provisions of Section 607.
The provisions of Sections 104,
111, 306, 309, 603, 604, 605 and 607 shall be applicable to any authenticating agent.
Pursuant to each appointment
made under this Section, the Debt Securities of each series covered by such appointment may have endorsed thereon, in lieu of the Trustee’s
certificate of authentication, an alternate certificate of authentication in substantially the following form:
This is one of the Debt Securities,
of the series designated herein, described in the within-mentioned Indenture.
|
[_____________________] |
|
|
|
|
By |
|
|
|
As Authenticating Agent for the Trustee |
|
By |
|
|
|
Authorized Signatory |
|
Dated |
|
ARTICLE SEVEN
Holders’ Lists and Reports By Trustee
and Company
Section 701.
Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or
cause to be furnished to the Trustee with respect to Debt Securities of each series for which it acts as Trustee:
(1) semi-annually,
not more than 15 days after the Regular Record Date in respect of the Debt Securities of such series or on May 15 and November 15
of each year with respect to each series of Debt Securities for which there are no Regular Record Dates, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of Registered Securities as of such Regular Record Date or May 1
or November 1, as the case may be, and
(2) at such
other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list is furnished;
provided,
however, that if and so long as the Trustee shall be the Security Registrar, no such list need be furnished.
Section 702.
Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve,
in as current a form as is reasonably practicable, the names and addresses of Holders of Registered Securities contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and addresses of Holders of Registered Securities received
by the Trustee in its capacity as Paying Agent or Security Registrar, if so acting. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished. The Trustee shall preserve for at least two years the names and
addresses of Holders of Bearer Securities filed with the Trustee by such Holders.
(b) The rights of Holders
to communicate with other Holders with respect to their rights under this Indenture or under the Debt Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
(c) Every Holder of Debt
Securities or coupons, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee
shall be held accountable by reason of any disclosure of information as to the names and addresses of the Holders made pursuant to the
Trust Indenture Act.
Section 703.
Reports by Trustee.
(a) Within 60 days after
May 15 of each year commencing with the first May 15 after the first issuance of Debt Securities pursuant to this Indenture
and at any other time required by the Trust Indenture Act, the Trustee shall transmit to Holders such reports concerning the Trustee and
its actions under this Indenture and such other matters as may be required pursuant to the Trust Indenture Act in the manner required
by the Trust Indenture Act.
(b) A copy of each such
report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Debt Securities
of such series are listed, with the Commission and also with the Company. The Company will notify the Trustee when any series of Debt
Securities are listed on any stock exchange.
Section 704.
Reports by Company.
The Company shall file with
the Trustee and the Commission, and transmit to Holders such information, documents and other reports, and such summaries thereof, as
may be required pursuant to the Trust Indenture Act at the time and in the manner pursuant to such Act; provided that such information,
documents or reports required to be filed with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act
shall be filed with the Trustee within 15 days of filing with the Commission.
Delivery of such reports, information
and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive
notice of any information contained therein or determinable from information contained therein, including the Company’s compliance
with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer
or Lease
Section 801.
Company May Consolidate, etc. Only on Certain Terms.
The Company shall not consolidate
with or merge into any other corporation or convey, transfer or lease its properties and assets substantially as an entirety to any Person,
unless:
(1) the corporation
formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases,
the properties and assets of the Company substantially as an entirety shall be a corporation organized and existing under the laws of
the United States of America, any political subdivision thereof or any State thereof and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of (and
premium, if any) and interest (including all additional amounts, if any, payable pursuant to Section 1004) on all the Debt Securities
and any related coupons and the performance of every covenant of this Indenture on the part of the Company to be performed or observed;
(2) immediately
after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time, or both, would become
an Event of Default, shall have happened and be continuing; and
(3) the Company
has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel each stating that such consolidation, merger, conveyance,
transfer or lease and such supplemental indenture comply with this Article and that all conditions precedent herein provided for
relating to such transaction have been met.
Section 802.
Successor Corporation Substituted.
Upon any consolidation with
or merger into any other corporation, or any conveyance, transfer or lease of the properties and assets of the Company substantially as
an entirety in accordance with Section 801, the successor corporation formed by such consolidation or into which the Company is merged
or to which such conveyance, transfer or lease 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 had been named as the Company herein, and thereafter, except
in the case of a lease of the properties and assets of the Company substantially as an entirety, the Company (which term for this purpose
shall mean the Person named as the “Company” in the first paragraph of this instrument or any successor corporation which
shall theretofore have become such in the manner presented in this Article) shall be relieved of all obligations and covenants under this
Indenture and the Debt Securities and any coupons.
ARTICLE NINE
Supplemental Indentures
Section 901.
Supplemental Indentures without Consent of Holders.
Without the consent of any Holders,
the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence
the succession of another corporation to the Company, and the assumption by such successor of the covenants of the Company herein and
in the Debt Securities contained; or
(2) to
add to the covenants of the Company, for the benefit of the Holders of all or any series of Debt Securities or coupons (and if such
covenants are to be for the benefit of less than all series of Debt Securities or coupons, stating that such covenants are expressly
being included solely for the benefit of such series), to convey, transfer, assign, mortgage or pledge any property to or with the
Trustee, or to surrender any right or power herein conferred upon the Company; or
(3) to add
any additional Events of Default (and if such Events of Default are to be applicable to less than all series of Debt Securities, stating
that such Events of Default are expressly being included solely to be applicable to such series); or
(4) to add
to, change or eliminate any of the provisions of this Indenture to provide that Bearer Securities may be registrable as to principal,
to change or eliminate any restrictions on the payment of principal (or premium, if any) on Registered Securities or of principal (or
premium, if any) or any interest on Bearer Securities, to permit Bearer Securities to be issued in exchange for Registered Securities
of other authorized denominations or to permit or facilitate the issuance of Debt Securities in uncertificated form, provided any
such action shall not adversely affect the interests of the Holders of Debt Securities of any series or any related coupons in any material
respect; or
(5) to change
or eliminate any of the provisions of this Indenture, provided that any such change or elimination (a) shall become effective
only when there is no Debt Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled
to the benefit of such provisions or (b) shall not apply to any Debt Security Outstanding; or
(6) to establish
the form or terms of Debt Securities of any series as permitted by Sections 201 and 301; or
(7) to evidence
and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Debt Securities of one or more series
and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611(b); or
(8) to cure
any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, to
make any other provisions with respect to matters or questions arising under this Indenture which shall not be inconsistent with the provisions
of this Indenture, or to make any other additions to, deletions from and other changes to the provisions hereof, provided such
other provisions shall not adversely affect the interests of the Holders of Debt Securities of any series or any related coupons in any
material respect; or
(9) to add
to or change or eliminate any provision of this Indenture as shall be necessary or desirable in accordance with any amendments to the
Trust Indenture Act, provided such action shall not adversely affect the interest of Holders of Debt Securities of any series or
any related coupons in any material respect.
Section 902.
Supplemental Indentures with Consent of Holders.
With the consent of the Holders
of not less than a majority in principal amount of the Outstanding Debt Securities of all series affected by such supplemental indenture,
acting together as a class, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution,
and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders under this
Indenture of such Debt Securities of such series and any related coupons; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Debt Security or coupon affected thereby,
(1) change
the Stated Maturity of the principal or any installment of principal of, or any installment of interest on, any Debt Security, or reduce
the principal amount thereof or the interest thereon or any premium payable upon redemption or repayment thereof, or change any obligation
of the Company to pay additional amounts pursuant to Section 1004 (except as contemplated by Section 801(1) and permitted
by Section 901(1)), or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502, or change any Place of Payment, or the coin or currency
in which any Debt Security or the interest thereon or any coupon is payable, or impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof (or, in the case of redemption or repayment, on or after the Redemption Date
or Repayment Date, as the case may be); or
(2) reduce
the percentage in principal amount of the Outstanding Debt Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or reduce the requirements of Section 1404
for quorum or voting; or
(3) modify
any of the provisions of this Section, Section 513 or Section 1006, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Debt Security
affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to
changes in the references to “the Trustee” and concomitant changes in this Section and Section 1006, or the deletion
of this proviso, in accordance with the requirements of Section 611(b) and 901(7); or
(4) adversely affect the
right to repayment, if any, of Debt Securities of any series at the option of the Holders thereof.
A supplemental indenture which
changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one
or more particular series of Debt Securities, or which modifies the rights of the Holders of Debt Securities of such series with respect
to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Debt Securities of
any other series.
It shall not be necessary for
any Act of Holders of the Debt Securities under this Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 903.
Execution of Supplemental Indentures.
In executing, or accepting the
additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created
by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise.
Section 904.
Effect of Supplemental Indentures.
Upon the execution of any supplemental
indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part
of this Indenture for all purposes; and every Holder of Debt Securities theretofore or thereafter authenticated and delivered hereunder
and of any coupons appertaining thereto shall be bound thereby.
Section 905.
Conformity with Trust Indenture Act.
Every supplemental indenture
executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 906.
Reference in Debt Securities to Supplemental Indentures.
Debt Securities of any series
authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Debt Securities of any series and any related coupons so modified as to conform, in the opinion of the Trustee
and the Board of Directors, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered
by the Trustee in exchange for Outstanding Debt Securities of such series and any related coupons.
ARTICLE TEN
Covenants
Section 1001.
Payment of Principal, Premium and Interest.
The Company covenants and agrees
for the benefit of each series of Debt Securities and any related coupons that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Debt Securities and any related coupons in accordance with the terms of the Debt Securities, any related coupons
and this Indenture. Any interest due on Bearer Securities on or before Maturity, other than additional amounts, if any, payable as provided
in Section 1004 in respect of principal of (or premium, if any, on) such a Debt Security, shall be payable only upon presentation
and surrender of the several coupons for such interest installments as are evidenced thereby as they severally mature.
Section 1002.
Maintenance of Office or Agency.
The Company will maintain in
each Place of Payment for any series of Debt Securities an office or agency where Debt Securities (but, except as otherwise provided below,
unless such Place of Payment is located outside the United States, not Bearer Securities) may be presented or surrendered for payment,
where Debt Securities may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company
in respect of the Debt Securities and this Indenture may be served. If Debt Securities of a series are issuable as Bearer Securities,
the Company will maintain, subject to any laws or regulations applicable thereto, an office or agency in a Place of Payment for such series
which is located outside the United States where Debt Securities of such series and the related coupons may be presented and surrendered
for payment (including payment of any additional amounts payable on Debt Securities of such series pursuant to Section 1004); provided,
however, that if the Debt Securities of such series are listed on any stock exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying Agent in any required city located outside the United States so long as
the Debt Securities of such series are listed on such exchange. The Company will give prompt written notice to the Trustee of the location,
and any change in the location, of any such office or agency. If at any time the Company shall fail to maintain any such required office
or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices or demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee its agent to receive all presentations,
surrenders, notices and demands, except that Bearer Securities of that series and the related coupons may be presented and surrendered
for payment (including payment of any additional amounts payable on Bearer Securities of that series pursuant to Section 1004) at
the place specified for the purpose pursuant to Section 301(5).
No payment of principal
of, premium or interest on Bearer Securities shall be made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account maintained with a bank located in the United States; provided,
however, payment of principal of and any premium and interest denominated in Dollars (including additional amounts payable in
respect thereof) on any Bearer Security may be made at an office or agency of, and designated by, the Company located in the United
States if (but only if) payment of the full amount of such principal, premium, interest or additional amounts in Dollars at all
offices outside the United States maintained for the purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions and the Trustee receives an Opinion of Counsel that such
payment within the United States is legal. Unless otherwise provided as contemplated by Section 301 with respect to any series
of Debt Securities, at the option of the Holder of any Bearer Security or related coupon, payment may be made by check in the
currency designated for such payment pursuant to the terms of such Bearer Security presented or mailed to an address outside the
United States or by transfer to an account in such currency maintained by the payee with a bank located outside the United
States.
The Company may also from time
to time designate one or more other offices or agencies (in or outside of such Place of Payment) where the Debt Securities of one or more
series and any related coupons (subject to the preceding paragraph) 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 any series of Debt Securities for such
purposes. The Company will give prompt written notice to the Trustee of any such designation and any change in the location of any such
other office or agency.
Section 1003.
Money for Debt Securities Payments to Be Held in Trust.
If the Company shall at any
time act as its own Paying Agent with respect to any series of Debt Securities, it will, on or before each due date of the principal of
(and premium, if any) or interest on any of the Debt Securities of such series and any related coupons, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) or interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein provided, and will promptly notify the Trustee of its action
or failure so to act.
Whenever the Company shall have
one or more Paying Agents with respect to any series of Debt Securities, it will, on or before each due date of the principal of (and
premium, if any) or interest on any of the Debt Securities of such series and any related coupons, deposit with a Paying Agent a sum sufficient
to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled
to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of
its action or failure so to act.
The Company will cause each
Paying Agent with respect to any series of Debt Securities other than the Trustee to execute and deliver to the Trustee an instrument
in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will
(1) hold all
sums held by it for the payment of the principal of (and premium, if any) or interest on Debt Securities of such series and any related
coupons in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of
as herein provided;
(2) give the
Trustee notice of any default by the Company (or any other obligor upon the Debt Securities of such series or any related coupons) in
the making of any payment of principal of (and premium, if any) or interest on the Debt Securities of such series or any related coupons;
and
(3) at any
time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held
in trust by such Paying Agent.
The Company may at any time,
for the purpose of terminating its obligations under this Indenture with respect to Debt Securities of any series or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such
sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and,
upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such
money.
Any principal and interest received
on the Eligible Instruments deposited with the Trustee or any money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (and premium, if any) or interest on any Debt Security of any series or any related
coupons or any money on deposit with the Trustee or any Paying Agent representing amounts deducted from the Redemption Price or Repayment
Price with respect to unmatured coupons not presented upon redemption or exercise of the Holder’s option for repayment pursuant
to Section 1106 or 1303 and remaining unclaimed for two years after such principal (and premium, if any) or interest has become due
and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and
the Holder of such Debt Security or any coupon appertaining thereto shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money (including the principal
and interest received on Eligible Instruments deposited with the Trustee), and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may
at the expense of the Company cause to be published once, in an Authorized Newspaper of general circulation in the [Borough of Manhattan,
The City of New York], and each Place of Payment or mailed to each such Holder, or both, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from the date of such publication or mailing, any unclaimed
balance of such money then remaining will be repaid to the Company.
Section 1004.
Payment of Additional Amounts.
If the Debt Securities of
a series provide for the payment of additional amounts, the Company will pay to the Holder of any Debt Security of any series or any
coupon appertaining thereto additional amounts upon the terms and subject to the conditions provided therein. Whenever in this
Indenture there is mentioned, in any context, the payment of the principal of (or premium, if any) or interest on, or in respect of,
any Debt Security of any series or any related coupon or the net proceeds received on the sale or exchange of any Debt Security of
any series, such mention shall be deemed to include mention of the payment of additional amounts provided for in the terms of such
Debt Securities and this Section to the extent that, in such context, additional amounts are, were or would be payable in
respect thereof pursuant to the provisions of this Section and express mention of the payment of additional amounts (if
applicable) in any provisions hereof shall not be construed as excluding additional amounts in those provisions hereof where such
express mention is not made.
If the Debt Securities of a
series provide for the payment of additional amounts, at least 10 days prior to the first Interest Payment Date with respect to that series
of Debt Securities (or if the Debt Securities of that series will not bear interest prior to Maturity, the first day on which a payment
of principal (and premium, if any) is made), and at least 10 days prior to each date of payment of principal (and premium, if any) or
interest if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate, the Company
will furnish the Trustee and the Company’s principal Paying Agent or Paying Agents, if other than the Trustee, with an Officers’
Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of (and premium, if any)
or interest on the Debt Securities of that series shall be made to Holders of Debt Securities of that series or the related coupons who
are United States Aliens without withholding for or on account of any tax, assessment or other governmental charge described in the Debt
Securities of that series. If any such withholding shall be required, then such Officers’ Certificate shall specify by country the
amount, if any, required to be withheld on such payments to such Holders of Debt Securities or coupons and the Company will pay to the
Trustee or such Paying Agent the additional amounts, if any, required by the terms of such Debt Securities and the first paragraph of
this Section. The Company covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless against, any loss, liability
or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted
by any of them in reliance on any Officers’ Certificate furnished pursuant to this Section.
Section 1005.
Officers’ Certificate as to Default.
The Company will deliver to
the Trustee, on or before a date not more than four months after the end of each fiscal year of the Company ending after the date hereof,
an Officers’ Certificate, stating whether or not to the best knowledge of the signers thereof the Company is in default in the performance
and observance of any of the terms, provisions and conditions of this Indenture, and, if the Company shall be in default, specifying all
such defaults and the nature thereof of which they may have knowledge.
Section 1006.
Waiver of Certain Covenants.
The Company may omit in any
particular instance to comply with any covenant or condition applicable to the Debt Securities of any series pursuant to Section 301
unless such covenant or condition is determined pursuant to Section 301 not to be subject to this provision if, before the time for
such compliance the Holders of at least a majority in principal amount of all series of the Debt Securities at the time Outstanding to
which such covenant or condition applies shall, acting together as a class, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and
the duties of the Trustee in respect of any such covenant or condition shall remain in full force and effect.
ARTICLE ELEVEN
Redemption of Debt Securities
Section 1101.
Applicability of Article.
Debt Securities of any series
which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified
as contemplated by Section 301 for Debt Securities of any series) in accordance with this Article.
Section 1102.
Election to Redeem; Notice to Trustee.
The election of the Company
to redeem any Debt Securities shall be evidenced by a Board Resolution. In case of any redemption at the election of the Company of less
than all of the Debt Securities of any series, the Company shall, at least 45 days prior to the Redemption Date fixed by the Company (unless
a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal amount and the
tenor and terms of the Debt Securities of any series to be redeemed. In the case of any redemption of Debt Securities prior to the expiration
of any restriction on such redemption provided in the terms of such Debt Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers’ Certificate evidencing compliance with such restriction.
Section 1103.
Selection by Trustee of Debt Securities to be Redeemed.
Except as otherwise specified
as contemplated by Section 301 for Debt Securities of any series, if less than all the Debt Securities of any series with like tenor
and terms are to be redeemed, the particular Debt Securities to be redeemed shall be selected not more than 60 days prior to the Redemption
Date by the Trustee, from the Outstanding Debt Securities of such series with like tenor and terms not previously called for redemption,
by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal
to the minimum authorized denomination for Debt Securities of such series or any integral multiple thereof which is also an authorized
denomination) of the principal amount of Registered Securities or Bearer Securities (if issued in more than one authorized denomination)
of such series of a denomination larger than the minimum authorized denomination for Debt Securities of such series.
The Trustee shall promptly notify
the Company in writing of the Debt Securities selected for redemption and, in the case of any Debt Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption of Debt Securities shall relate, in the case of any Debt
Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Debt Security which has been or is to
be redeemed.
Section 1104.
Notice of Redemption.
Notice of redemption shall be
given in the manner provided in Section 106 not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of
Debt Securities to be redeemed.
All notices of redemption shall
state:
(1) the Redemption
Date;
(2) the Redemption
Price;
(3) if less
than all Outstanding Debt Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Debt Securities to be redeemed;
(4) that on
the Redemption Date the Redemption Price will become due and payable upon each such Debt Security to be redeemed, and that interest thereon
shall cease to accrue on and after said date;
(5) the Place
or Places of Payment where such Debt Securities, together in the case of Bearer Securities with all coupons, if any, appertaining thereto
maturing after the Redemption Date, are to be surrendered for payment of the Redemption Price;
(6) that Bearer
Securities may be surrendered for payment only at such place or places which are outside the United States, except as otherwise provided
in Section 1002;
(7) that the
redemption is for a sinking fund, if such is the case; and
(8) the CUSIP
number, if any.
A notice of redemption published
as contemplated by Section 106 need not identify particular Registered Securities to be redeemed.
Notice of redemption of Debt
Securities to be redeemed at the election of the Company shall be given by the Company, or, at the Company’s request, by the Trustee
in the name and at the expense of the Company.
Section 1105.
Deposit of Redemption Price.
On or prior to any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 1003) an amount of money and/or, to the extent the Debt Securities to be redeemed are denominated
and payable in Dollars only, Eligible Instruments the payments of principal and interest on which when due (and without reinvestment and
providing no tax liability will be imposed upon the Trustee or the Holders of the Debt Securities to be redeemed) will provide money on
or prior to the Redemption Date in such amounts as will (together with any money irrevocably deposited in trust with the Trustee, without
investment) be sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Debt Securities or portions thereof which are to be redeemed on that date; provided, however, that deposits
with respect to Bearer Securities shall be made with a Paying Agent or Paying Agents located outside the United States except as otherwise
provided in Section 1002, unless otherwise specified as contemplated by Section 301.
Section 1106.
Debt Securities Payable on Redemption Date.
Notice of redemption having
been given as aforesaid, the Debt Securities to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest)
such Debt Securities shall cease to bear interest and the coupons for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such Debt Security for redemption in accordance with said notice,
such Debt Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided,
however, that installments of interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable
only upon presentation and surrender of coupons for such interest (at an office or agency located outside the United States except as
otherwise provided in Section 1002), and provided further, that installments of interest on Registered Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Debt Securities, or one or more Predecessor Securities,
registered as such on the relevant Record Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered
for redemption shall not be accompanied by all related coupons maturing after the Redemption Date, such Bearer Security may be paid after
deducting from the Redemption Price an amount equal to the face amount of all such missing coupons, or the surrender of such missing coupon
or coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of such Bearer Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall have been made from the Redemption Price, such Holder shall
be entitled to receive the amount so deducted without interest thereon; provided, however, that interest represented by coupons
shall be payable only upon presentation and surrender of those coupons at an office or agency located outside of the United States except
as otherwise provided in Section 1002.
If any Debt Security called
for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the Debt Security.
Section 1107.
Debt Securities Redeemed in Part.
Any Registered Security which
is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company, the Security Registrar or the
Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, the Security Registrar
and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Debt Security without service charge, a new Registered Security or Registered
Securities of the same series and of like tenor and terms, of any authorized denominations as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of the Debt Security so surrendered.
ARTICLE TWELVE
Sinking Funds
Section 1201.
Applicability of Article.
The provisions of this Article shall
be applicable to any sinking fund for the retirement of Debt Securities of a series except as otherwise specified as contemplated by Section 301
for Debt Securities of such series.
The minimum amount of any sinking
fund payment provided for by the terms of Debt Securities of any series is herein referred to as a “mandatory sinking fund payment”,
and any payment in excess of such minimum amount provided for by the term of Debt Securities of any series is herein referred to as an
“optional sinking fund payment”. If provided for by the terms of Debt Securities of any series, the amount of any sinking
fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption
of Debt Securities of any series as provided for by the terms of Debt Securities of such series.
Section 1202.
Satisfaction of Sinking Fund Payments with Debt Securities.
The Company (1) may deliver
Outstanding Debt Securities of a series (other than any previously called for redemption), together in the case of any Bearer Securities
of such series with all unmatured coupons appertaining thereto, and (2) may apply as a credit Debt Securities of a series which have
been redeemed either at the election of the Company pursuant to the terms of such Debt Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Debt Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Debt Securities of such series required to be made pursuant to the terms of such Debt Securities as provided
for by the terms of such series; provided that such Debt Securities have not been previously so credited. Such Debt Securities
shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Debt Securities for redemption
through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If as a result of the
delivery or credit of Debt Securities in lieu of cash payments pursuant to this Section 1202, the principal amount of Debt Securities
to be redeemed in order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need not call Debt Securities for
redemption, except upon Company Request, and such cash payment shall be held by the Trustee or a Paying Agent and applied to the next
succeeding sinking fund payment, provided, however, that the Trustee or such Paying Agent shall at the request of the Company from
time to time pay over and deliver to the Company any cash payment so being held by the Trustee or such Paying Agent upon delivery by the
Company to the Trustee of Debt Securities purchased by the Company having an unpaid principal amount equal to the cash payment requested
to be released to the Company.
Section 1203.
Redemption of Debt Securities for Sinking Fund.
Not less than 60 days prior
to each sinking fund payment date for any series of Debt Securities (unless a shorter period shall be satisfactory to the Trustee), the
Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash, the portion
thereof, if any, which is to be satisfied by crediting Debt Securities of that series pursuant to Section 1202 and the basis for
any such credit and, prior to or concurrently with the delivery of such Officers’ Certificate, will also deliver to the Trustee
any Debt Securities to be so credited and not theretofore delivered to the Trustee. Not less than 30 days (unless a shorter period shall
be satisfactory to the Trustee) before each such sinking fund payment date the Trustee shall select the Debt Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Debt Securities shall be made upon the terms and in the manner stated in Sections 1105, 1106 and 1107.
ARTICLE THIRTEEN
Repayment at the Option of Holders
Section 1301.
Applicability of Article.
Debt Securities of any series
which are repayable at the option of the Holders thereof before their Stated Maturity shall be repaid in accordance with their terms and
(except as otherwise specified pursuant to Section 301 for Debt Securities of such series) in accordance with this Article.
Section 1302.
Repayment of Debt Securities.
Each Debt Security which is
subject to repayment in whole or in part at the option of the Holder thereof on a Repayment Date shall be repaid at the applicable Repayment
Price together with interest accrued to such Repayment Date as specified pursuant to Section 301.
Section 1303.
Exercise of Option; Notice.
Each Holder desiring to exercise
such Holder’s option for repayment shall, as conditions to such repayment, surrender the Debt Security to be repaid in whole or
in part together with written notice of the exercise of such option at any office or agency of the Company in a Place of Payment, not
less than 30 nor more than 45 days prior to the Repayment Date; provided, however, that surrender of Bearer Securities together
with written notice of exercise of such option shall be made at an office or agency located outside the United States except as otherwise
provided in Section 1002. Such notice, which shall be irrevocable, shall specify the principal amount of such Debt Security to be
repaid, which shall be equal to the minimum authorized denomination for such Debt Security or an integral multiple thereof, and shall
identify the Debt Security to be repaid and, in the case of a partial repayment of the Debt Security, shall specify the denomination or
denominations of the Debt Security or Debt Securities of the same series to be issued to the Holder for the portion of the principal of
the Debt Security surrendered which is not to be repaid.
If any Bearer Security surrendered
for repayment shall not be accompanied by all unmatured coupons and all matured coupons in default, such Bearer Security may be paid after
deducting from the Repayment Price an amount equal to the face amount of all such missing coupons, or the surrender of such missing coupon
or coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of such Bearer Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall have been made from the Repayment Price, such Holder shall
be entitled to receive the amount so deducted without interest thereon; provided, however, that interest represented by coupons
shall be payable only at an office or agency located outside the United States except as otherwise provided in Section 1002.
The Company shall execute and
the Trustee shall authenticate and deliver without service charge to the Holder of any Registered Security so surrendered a new Registered
Security or Securities of the same series, of any authorized denomination specified in the foregoing notice, in an aggregate principal
amount equal to any portion of the principal of the Registered Security so surrendered which is not to be repaid.
The Company shall execute and
the Trustee shall authenticate and deliver without service charge to the Holder of any Bearer Security so surrendered a new Registered
Security or Securities or new Bearer Security or Securities (and all related unmatured coupons and matured coupons in default) or any
combination thereof of the same series of any authorized denomination or denominations specified in the foregoing notice, in an aggregate
principal amount equal to any portion of the principal of the Debt Security so surrendered which is not to be paid; provided, however,
that the issuance of a Registered Security therefor shall be subject to applicable laws and regulations, including provisions of the United
States Federal income tax laws and regulations in effect at the time of the exchange; neither the Company, the Trustee nor the Security
Registrar shall issue Registered Securities for Bearer Securities if it has received an Opinion of Counsel that as a result of such issuance
the Company would suffer adverse consequences under the United States Federal income tax laws then in effect and the Company has delivered
to the Trustee a Company Order directing the Trustee not to make such issuances thereafter unless and until the Trustee receives a subsequent
Company Order to the contrary. The Company shall deliver copies of such Company Order to the Security Registrar.
For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the repayment of Debt Securities shall relate, in the case of any Debt
Security repaid or to be repaid only in part, to the portion of the principal of such Debt Security which has been or is to be repaid.
Section 1304. Election of Repayment
by Remarketing Entities.
The Company may elect, with
respect to Debt Securities of any series which are repayable at the option of the Holders thereof before their Stated Maturity, at any
time prior to any Repayment Date to designate one or more Remarketing Entities to purchase, at a price equal to the Repayment Price, Debt
Securities of such series from the Holders thereof who give notice and surrender their Debt Securities in accordance with Section 1303.
Section 1305.
Securities Payable on the Repayment Date.
Notice of exercise of the option
of repayment having been given and the Debt Securities so to be repaid having been surrendered as aforesaid, such Debt Securities shall,
unless purchased in accordance with Section 1304, on the Repayment Date become due and payable at the price therein specified and
from and after the Repayment Date such Debt Securities shall cease to bear interest and shall be paid on the Repayment Date, and the coupons
for such interest appertaining to Bearer Securities so to be repaid, except to the extent provided above, shall be void, unless the Company
shall default in the payment of such price in which case the Company shall continue to be obligated for the principal amount of such Debt
Securities and shall be obligated to pay interest on such principal amount at the rate borne by such Debt Securities from time to time
until payment in full of such principal amount.
ARTICLE FOURTEEN
Meetings of Holders of Debt Securities
Section 1401.
Purposes for Which Meetings May Be Called.
If Debt Securities of a series
are issuable in whole or in part as Bearer Securities, a meeting of Holders of Debt Securities of such series may be called at any time
and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent,
waiver or other Act provided by this Indenture to be made, given or taken by Holders of Debt Securities of such series.
Section 1402.
Call, Notice and Place of Meetings.
(a) The Trustee may at
any time call a meeting of Holders of Debt Securities of any series issuable as Bearer Securities for any purpose specified in Section 1401,
to be held at such time and at such place in the [Borough of Manhattan, The City of New York, or in London] as the Trustee shall determine.
Notice of every meeting of Holders of Debt Securities of any series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 106, not less than 21 nor
more than 180 days prior to the date fixed for the meeting.
(b) In case at any time
the Company, pursuant to a Board Resolution, or the Holders of at least 10% in principal amount of the Outstanding Debt Securities of
any series shall have requested the Trustee to call a meeting of the Holders of Debt Securities of such series for any purpose specified
in Section 1401, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee
shall not have made the first publication of the notice of such meeting within 21 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the Company or the Holders of Debt Securities of such series in the amount
above specified, as the case may be, may determine the time and the place in the [Borough of Manhattan, The City of New York, or in London]
for such meeting and may call such meeting for such purposes by giving notice thereof as provided in subsection (a) of this Section.
Section 1403.
Persons Entitled to Vote at Meetings.
To be entitled to vote at any
meeting of Holders of Debt Securities of any series, a Person shall be (1) a Holder of one or more Outstanding Debt Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Debt
Securities of such series by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting of
Holders of Debt Securities of any series shall be the Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its counsel.
Section 1404. Quorum; Action.
The Persons entitled to vote
a majority in principal amount of the Outstanding Debt Securities of a series shall constitute a quorum for a meeting of Holders of Debt
Securities of such series. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Debt Securities of such series, be dissolved. In the absence of a quorum in any other case the
meeting may be adjourned for a period of not less than 10 days as determined by the chairperson of the meeting prior to the adjournment
of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairperson of the meeting prior to the adjournment of such adjourned meeting. Notice of
this reconvening of any adjourned meeting shall be given as provided in Section 1402(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned
meeting shall state expressly the percentage, as provided above, of the principal amount of the Outstanding Debt Securities of such series
which shall constitute a quorum.
Except as limited by the proviso
to Section 902, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid
may be adopted only by the affirmative vote of the Holders of a majority in principal amount of the Outstanding Debt Securities of that
series, provided however, that, except as limited by the proviso to Section 902, any resolution with respect to any request,
demand, authorization, direction, notice, consent, waiver or other Act which this Indenture expressly provides may be made, given or taken
by the Holders of a specified percentage, which is less than a majority, in principal amount of the Outstanding Debt Securities of a series
may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote
of the Holders of such specified percentage in principal amount of the Outstanding Debt Securities of that series. Any resolution passed
or decision taken at any meeting of Holders of Debt Securities of any series duly held in accordance with this Section shall be binding
on all the Holders of Debt Securities of such series and the related coupons, whether or not present or represented at the meeting.
Section 1405.
Determination of Voting Rights; Conduct and Adjournment of Meetings.
(a) Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Debt Securities of such series in regard to proof of the holding of Debt Securities of such series and of the appointment
of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations, the holding of Debt Securities shall be proved in
the manner specified in Section 104 and the appointment of any proxy shall be proved in the manner specified in
Section 104 or, in the case of Bearer Securities, by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to certify to the holding of Bearer Securities. Such
regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine
without the proof specified in Section 104 or other proof.
(b) The Trustee shall,
by an instrument in writing, appoint a temporary chairperson of the meeting, unless the meeting shall have been called by the Company
or by Holders of Debt Securities as provided in Section 1402(b), in which case the Company or the Holders of Debt Securities of the
series calling the meeting, as the case may be, shall in like manner appoint a temporary chairperson. A permanent chairperson and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding Debt
Securities of such series represented at the meeting.
(c) At any meeting each
Holder of a Debt Security of such series or proxy shall be entitled to vote based on the principal amount of the Outstanding Debt Securities
of such series held or represented by such Holder; provided, however, that no vote shall be cast or counted at any meeting in respect
of any Debt Security challenged as not Outstanding and ruled by the chairperson of the meeting not to be Outstanding. The chairperson
of the meeting shall have no right to vote, except as a Holder of a Debt Security of such series or proxy.
(d) Any meeting of Holders
of Debt Securities of any series duly called pursuant to Section 1402 at which a quorum is present may be adjourned from time to
time by Persons entitled to vote a majority in principal amount of the Outstanding Debt Securities of such series represented at the meeting;
and the meeting may be held as so adjourned without further notice.
Section 1406.
Counting Votes and Recording Action of Meetings.
The vote upon any resolution
submitted to any meeting of Holders of Debt Securities of any series shall be by written ballots on which shall be subscribed the signatures
of the Holders of Debt Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Debt Securities of such series held or represented by them. The permanent chairperson of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary
of the meeting their verified written reports in triplicate of all votes cast at the meeting. A record, at least in triplicate, of the
proceedings of each meeting of Holders of Debt Securities of any series shall be prepared by the secretary of the meeting and there shall
be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as
provided in Section 1402 and, if applicable, Section 1401. Each copy shall be signed and verified by the affidavits of the permanent
chairperson and secretary of the meeting and one such copy shall be delivered to the Company, and another to the Trustee to be preserved
by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
ARTICLE FIFTEEN
Defeasance
Section 1501.
Termination of Company’s Obligations.
If this Section 1501 is
specified, as contemplated by Section 301, to be applicable to any series of Debt Securities and if the Company deposits irrevocably
in trust with the Trustee money and/or, to the extent such Debt Securities are denominated and payable in Dollars only, Eligible Instruments
the payments of principal and interest on which when due (and without reinvestment and providing no tax liability will be imposed upon
the Trustee or the Holders of such Debt Securities) will provide money in such amounts as will (together with any money irrevocably deposited
in trust with the Trustee, without investment) be sufficient to pay the principal of (and premium, if any) and any installment of principal
of (and premium, if any) or interest when due on the Debt Securities of such series and any coupons appertaining thereto and any mandatory
sinking fund, repayment or analogous payments thereon on the scheduled due dates therefor at the Stated Maturity thereof, the Company’s
obligations under any covenant determined pursuant to Section 301 to be subject to this Section shall terminate with respect
to the Debt Securities of the series for which such deposit was made; provided, however, that (i) no Event of Default with
respect to the Debt Securities of such series under Section 501(5) or 501(6) or event that with notice or lapse of time
or both would constitute such an Event of Default shall have occurred and be continuing on such date, (ii) such deposit will not
result in a breach of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party
or by which it is bound, and (iii) such termination shall not relieve the Company of its obligations under the Debt Securities of
such series and this Indenture to pay when due the principal of (and premium, if any) and interest and additional amounts on such Debt
Securities and any coupons appertaining thereto if such Debt Securities or coupons are not paid (or payment is not provided for) when
due from the money and Eligible Instruments (and the proceeds thereof) so deposited.
It shall be a condition to the
deposit of cash and/or Eligible Instruments and the termination of the Company’s obligations pursuant to the provisions of this
Section with respect to the Debt Securities of any series under any covenant determined pursuant to Section 301 to be subject
to this Section that the Company deliver to the Trustee (i) an Opinion of Counsel to the effect that: (a) Holders of Debt
Securities of such series and any coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes
as a result of such deposit and termination and (b) such Holders (and future Holders) will be subject to tax in the same amount,
manner and timing as if such deposit and termination had not occurred, (ii) an Officers’ Certificate to the effect that under
the laws in effect on the date such money and/or Eligible Instruments are deposited with the Trustee, the amount thereof will be sufficient,
after payment of all Federal, state and local taxes in respect thereof payable by the Trustee, to pay principal (and premium, if any)
and interest when due on the Debt Securities of such series and any coupons appertaining thereto; and (iii) an Officers’ Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the defeasance contemplated in this
Section have been complied with.
It shall be an additional condition
to the deposit of cash and/or Eligible Instruments and the termination of the Company’s obligations pursuant to the provisions of
this Section under any covenant determined pursuant to Section 301 to be subject to this Section, with respect to the Debt Securities
of any series then listed, that the Company deliver an Opinion of Counsel that the Debt Securities of such series will not be delisted
as a result of such deposit and termination.
After a deposit as provided
herein, the Trustee shall, upon Company Request, acknowledge in writing the discharge of the Company’s obligations pursuant to the
provisions of this Section with respect to the Debt Securities of such series under any covenant determined pursuant to Section 301
to be subject to this Section.
Section 1502.
Repayment to Company.
The Trustee and any Paying Agent
shall promptly pay to the Company upon Company Request any money or Eligible Instruments not required for the payment of the principal
of (and premium, if any) and interest on the Debt Securities of any series and any related coupons for which money or Eligible Instruments
have been deposited pursuant to Section 1501 held by them at any time.
The Trustee and any Paying Agent
shall promptly pay to the Company upon Company Request any money held by them for the payment of principal (and premium, if any) and interest
that remains unclaimed for two years after the Maturity of the Debt Securities for which a deposit has been made pursuant to Section 1501.
After such payment to the Company, the Holders of the Debt Securities of such series and any related coupons shall thereafter, as unsecured
general creditors, look only to the Company for the payment thereof.
Section 1503.
Indemnity for Eligible Instruments.
The Company shall pay and shall
indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the deposited Eligible Instruments or the principal
or interest received on such Eligible Instruments.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly executed as of the day and year first above written.
|
AUDIOEYE, INC. |
|
|
|
By |
|
|
|
Its |
|
|
|
|
[_______________________] |
|
|
|
|
By |
|
|
|
Its |
|
|
[Signature Page to Indenture]
EXHIBIT A-1
[Form of Certificate of Beneficial Ownership
by a
Non-United States Person or by Certain Other Persons]
Certificate
AUDIOEYE, INC.
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made
to the Indenture dated as of [_________________] (the “Indenture”) between AudioEye, Inc. and [______________] (the
“Trustee”), covering the above-captioned Debt Securities. This is to certify that as of the date hereof,
_______________________ principal amount of Debt Securities credited to you for our account (i) is owned by persons that are
not United States Persons, as defined below; (ii) is owned by United States Persons that are (a) foreign branches of
United States financial institutions (as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) (“financial
institutions”) purchasing for their own account or for resale, or (b) United States Persons who acquired the Debt
Securities through foreign branches of United States financial institutions and who hold the Debt Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b), each such United States financial institution
encloses herewith a certificate in the form of Exhibit A-2 to the Indenture); or (iii) is owned by United States or
foreign financial institutions for purposes of resale during the restricted period (as defined in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), which United States or foreign financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) certify that they have not acquired the Debt Securities for purposes of
resale directly or indirectly to a United States Person or to a person within the United States or its possessions.
[Insert if certificate does
not relate to an interest payment--We undertake to advise you by tested telex followed by written confirmation if the above statement
as to beneficial ownership is not correct on the date of delivery of the above-captioned Debt Securities in bearer form as to all of such
Debt Securities with respect to such of said Debt Securities as then appear in your books as being held for our account.] We understand
that this certificate is required in connection with United States tax laws. We irrevocably authorize you to produce this certificate
or a copy hereof to any interested party in any administrative or legal proceedings with respect to the matters covered by this certificate.
“United States Person” shall mean a citizen or resident of the United States of America (including the District of Columbia),
a corporation, partnership or other entity created or organized in or under the laws of the United States or any political subdivision
thereof or an estate or trust that is subject to United States Federal income taxation regardless of the source of its income.
[This certificate excepts
and does not relate to principal amount of Debt Securities credited to you for our account and to which we are not now able to make the
certification set forth above. We understand that definitive Debt Securities cannot be delivered and interest cannot be paid until we
are able to so certify with respect to such principal amount of Debt Securities.]*
Dated: |
|
|
|
|
[To be dated on or after _______________ (the date determined as provided in the Indenture)] |
|
|
|
|
|
|
|
|
|
|
|
[Name of Person Entitled to Receive Bearer Security] |
|
|
|
(Authorized Signatory) |
|
|
|
Name: |
|
|
|
|
Title: |
|
*Delete if inappropriate
EXHIBIT A-2
[Form of Certificate of Status as a
Foreign Branch of a United States Financial Institution]
Certificate
AUDIOEYE, INC.
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made to
the Indenture dated as of [________________] (the “Indenture”), between AudioEye, Inc. and [__________________], relating
to the offering of the above-captioned Debt Securities (the “Debt Securities”). Unless herein defined, terms used herein have
the same meaning as given to them in the Indenture.
The undersigned represents
that it is a branch located outside the United States of a United States securities clearing organization, bank or other financial institution
(as defined in U.S. Treasury Regulation Section 1.165-12(c)(1)(v)) that holds customers’ securities in the ordinary course
of its trade or business and agrees, and authorizes you to advise the issuer or the issuer’s agent, that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the regulations thereunder and
is not purchasing for resale directly or indirectly to a United States Person or to a person within the United States or its possessions.
We undertake to advise you by tested telex followed by written confirmation if the statement in the immediately preceding sentence is
not correct on the date of delivery of the above-captioned Debt Securities in bearer form.
We understand that this certificate
is required in connection with the United States tax laws. We irrevocably authorize you to produce this certificate or a copy hereof to
any interested party in any administrative or legal proceedings with respect to the matters covered by this certificate.
Dated: |
|
|
|
|
[To be dated on or after _______________ (the date determined as provided in the Indenture)] |
|
|
|
|
|
|
[Name of Person Entitled to Receive Bearer Security] |
|
|
|
(Authorized Signatory) |
|
|
|
Name: |
|
|
|
|
Title: |
|
EXHIBIT B
[Form of Certificate to be Given by Euroclear
and Clearstream
in Connection with the Exchange of All or a Portion
of a
Temporary Global Security or to Obtain
Interest Prior to Exchange]
Certificate
AUDIOEYE, INC.
[Insert title or sufficient description of Debt
Securities to be delivered]
We refer to that portion,
, of the Global Security representing the above-captioned issue [which is herewith submitted to be exchanged for definitive Debt Securities]*
[for which we are seeking to obtain payment of interest]* (the “Submitted Portion”). This is to certify, pursuant to the Indenture
dated as of [_______________] (the “Indenture”) between AudioEye, Inc. and [__________________] (the “Trustee”),
that we have received in writing, by tested telex or by electronic transmission from member organizations with respect to each of the
persons appearing in our records as being entitled to a beneficial interest in the Submitted Portion a Certificate of Beneficial Ownership
by a Non-United States Person or by Certain Other Persons [and, in some cases, a Certificate of Status as a Foreign Branch of a United
States Financial Institution, authorizing us to inform the issuer or the issuer’s agent that it will comply with the requirements
of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the regulations thereunder]* substantially
in the form of Exhibit A-1 [and A-2]* to the Indenture.
We hereby request that you
deliver to the office of _________________________ in ______________________ definitive Bearer Securities in the denominations on the
attached Schedule A.
We further certify that as
of the date hereof we have not received any notification from any of the persons giving such certificates to the effect that the statements
made by them with respect to any part of the Submitted Portion are no longer true and cannot be relied on as of the date hereof.
Dated: |
|
|
|
|
|
|
|
|
|
|
[ __ , as |
|
|
|
Operator of the Euroclear System] [Clearstream] |
|
|
|
|
|
|
|
|
By: |
|
*Delete if inappropriate.
EXHIBIT 4.3
AUDIOEYE, INC.
TO
[___________________]
Trustee
________________
INDENTURE
Dated as of [__________]
________________
Subordinated Debt Securities
AudioEye, Inc.
Reconciliation and tie between Trust Indenture
Act of 1939 and
Indenture, dated as of [_____________]
Trust Indenture Act Section |
Indenture Section |
§310(a)(1) |
609 |
(a)(2) |
609 |
(a)(3) |
Not Applicable |
(a)(4) |
Not Applicable |
(a)(5) |
609 |
(b) |
608, 610 |
§311(a) |
613 |
(b) |
613 |
§312(a) |
701, 702(a) |
(b) |
702(b) |
(c) |
702(c) |
§313(a) |
703(a) |
(b) |
703(a) |
(c) |
703(a) |
(d) |
703(b) |
§314(a) |
704, 1005 |
(b) |
Not Applicable |
(c)(1) |
102 |
(c)(2) |
102 |
(c)(3) |
Not Applicable |
(d) |
Not Applicable |
(e) |
102 |
§315(a) |
601 |
(b) |
602 |
(c) |
601 |
(d) |
601 |
(e) |
514 |
§316(a) |
101 |
(a)(1)(A) |
104(h), 502, |
|
512 |
(a)(1)(B) |
104(h), 513 |
(a)(2) |
Not Applicable |
(b) |
508 |
(c) |
104(h) |
§317(a)(1) |
503 |
(a)(2) |
504 |
(b) |
1003 |
§318(a) |
107 |
(c) |
107 |
Note: This reconciliation and tie shall
not, for any purpose, be deemed to be part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE ONE Definitions and Other Provisions of General Application |
1 |
Section 101. |
Definitions |
1 |
Section 102. |
Compliance Certificates and Opinions |
7 |
Section 103. |
Form of Documents Delivered to Trustee |
7 |
Section 104. |
Acts of Holders |
8 |
Section 105. |
Notices, etc., to Trustee and Company |
9 |
Section 106. |
Notice to Holders; Waiver |
9 |
Section 107. |
Conflict with Trust Indenture Act |
10 |
Section 108. |
Effect of Headings and Table of Contents |
10 |
Section 109. |
Successors and Assigns |
10 |
Section 110. |
Separability Clause |
10 |
Section 111. |
Benefits of Indenture |
10 |
Section 112. |
Governing Law |
10 |
Section 113. |
Legal Holidays |
10 |
Section 114. |
Counterparts |
10 |
Section 115. |
Exemption from Individual Liability |
10 |
ARTICLE TWO Debt Security Forms |
11 |
Section 201. |
Forms Generally |
11 |
Section 202. |
Form of Trustee’s Certificate of Authentication |
11 |
Section 203. |
Debt Securities in Global Form |
12 |
ARTICLE THREE |
12 |
Section 302. |
Denominations |
14 |
Section. 303. |
Execution, Authentication, Delivery and Dating |
14 |
Section 304. |
Temporary Debt Securities |
16 |
Section 305. |
Registration; Registration of Transfer and Exchange |
17 |
Section 307. |
Payment of Interest; Interest Rights Preserved |
20 |
Section 308. |
Persons Deemed Owners |
22 |
Section 309. |
Cancellation |
22 |
Section 310. |
Computation of Interest |
22 |
Section 311. |
Certification by a Person Entitled to Delivery of a Bearer
Security |
22 |
312. |
Judgments |
22 |
ARTICLE FOUR Satisfaction and Discharge |
23 |
Section 401. |
Satisfaction
and Discharge of Indenture |
23 |
Section 402. |
Application of Trust Money and Eligible Instruments |
24 |
Section 403. |
Satisfaction, Discharge and Defeasance of Debt Securities of
any Series |
24 |
ARTICLE FIVE Remedies |
26 |
Section 501. |
Events of Default |
26 |
Section 502. |
Acceleration of Maturity; Rescission and Annulment |
27 |
Section 503. |
Collection of Indebtedness and Suits for Enforcement by Trustee |
27 |
Section 504. |
Trustee May File Proofs of Claim |
28 |
Section 505. |
Trustee May Enforce Claims without Possession of Debt
Securities or Coupons |
28 |
Section 506. |
Application of Money Collected |
28 |
Section 507. |
Limitation on Suits |
29 |
Section 508. |
Unconditional Right of Holders to Receive Principal, Premium
and Interest |
29 |
Section 509. |
Restoration of Rights and Remedies |
29 |
Section 510. |
Rights and Remedies Cumulative |
29 |
Section 511. |
Delay or Omission Not Waiver |
30 |
Section 512. |
Control by Holders of Debt Securities |
30 |
Section 513. |
Waiver of Past Defaults |
30 |
Section 514. |
Undertaking for Costs |
30 |
Section 515. |
Waiver of Stay or Extension Laws |
30 |
ARTICLE SIX The Trustee |
31 |
Section 601. |
Certain Duties and Responsibilities |
31 |
Section 602. |
Notice of Default |
31 |
Section 603. |
Certain Rights of Trustee |
32 |
Section 604. |
Not Responsible for Recitals or Issuance of Debt Securities |
32 |
Section 605. |
May Hold Debt Securities or Coupons |
32 |
Section 606. |
Money Held in Trust |
33 |
Section 607. |
Compensation and Reimbursement |
33 |
Section 608. |
Disqualification; Conflicting Interests |
33 |
Section 609. |
Corporate Trustee Required; Eligibility |
33 |
Section 610. |
Resignation and Removal; Appointment of Successor |
34 |
Section 611. |
Acceptance of Appointment by Successor |
35 |
Section 612. |
Merger, Conversion, Consolidation or Succession to Business |
35 |
Section 613. |
Preferential Collection of Claims Against Company |
36 |
Section 614. |
Authenticating Agent. |
36 |
ARTICLE SEVEN Holders’ Lists and Reports By Trustee and Company |
37 |
Section 701. |
Company to Furnish Trustee Names and Addresses of Holders |
37 |
Section 702. |
Preservation of Information; Communications to Holders |
37 |
Section 703. |
Reports by Trustee |
37 |
Section 704. |
Reports by Company |
37 |
ARTICLE EIGHT Consolidation, Merger, Conveyance, Transfer or Lease |
38 |
Section 801. |
Company May Consolidate, etc. Only on Certain Terms |
38 |
Section 802. |
Successor Corporation Substituted |
38 |
ARTICLE NINE Supplemental Indentures |
38 |
Section 901. |
Supplemental Indentures without Consent of Holders |
38 |
Section 902. |
Supplemental Indentures with Consent of Holders |
39 |
Section 903. |
Execution of Supplemental Indentures |
40 |
Section 904. |
Effect of Supplemental Indentures |
40 |
Section 905. |
Conformity with Trust Indenture Act |
40 |
Section 906. |
Reference in Debt Securities to Supplemental Indentures |
40 |
ARTICLE TEN Covenants |
41 |
Section 1001. |
Payment of Principal, Premium and Interest |
41 |
Section 1002. |
Maintenance of Office or Agency |
41 |
Section 1003. |
Money for Debt Securities Payments to Be Held in Trust |
41 |
Section 1004. |
Payment of Additional Amounts |
42 |
Section 1005. |
Officers’ Certificate as to Default |
43 |
Section 1006. |
Waiver of Certain Covenants |
43 |
ARTICLE ELEVEN Redemption of Debt Securities |
43 |
Section 1101. |
Applicability of Article |
43 |
Section 1102. |
Election to Redeem; Notice to Trustee |
43 |
Section 1103. |
Selection by Trustee of Debt Securities to be Redeemed |
44 |
Section 1104. |
Notice of Redemption |
44 |
Section 1105. |
Deposit of Redemption Price |
44 |
Section 1106. |
Debt Securities Payable on Redemption Date |
45 |
Section 1107. |
Debt Securities Redeemed in Part |
45 |
ARTICLE TWELVE Sinking Funds |
45 |
Section 1201. |
Applicability of Article |
45 |
Section 1202. |
Satisfaction of Sinking Fund Payments with Debt Securities |
46 |
Section 1203. |
Redemption of Debt Securities for Sinking Fund |
46 |
ARTICLE THIRTEEN Repayment at the Option of Holders |
46 |
Section 1301. |
Applicability of Article |
46 |
Section 1302. |
Repayment of Debt Securities |
46 |
Section 1303. |
Exercise of Option; Notice |
46 |
Section 1304. |
Election of Repayment by Remarketing Entities |
47 |
Section 1305. |
Securities Payable on the Repayment Date |
47 |
ARTICLE FOURTEEN Meetings of Holders of Debt Securities |
48 |
Section 1401. |
Purposes for Which Meetings May Be Called |
48 |
Section 1402. |
Call, Notice and Place of Meetings |
48 |
Section 1403. |
Persons Entitled to Vote at Meetings |
48 |
Section 1404. |
Quorum; Action |
48 |
Section 1405. |
Determination of Voting Rights; Conduct and Adjournment of
Meetings |
49 |
Section 1406. |
Counting Votes and Recording Action of Meetings |
49 |
ARTICLE FIFTEEN Defeasance |
50 |
Section 1501. |
Termination of Company’s Obligations |
50 |
Section 1502. |
Repayment to Company |
50 |
Section 1503. |
Indemnity for Eligible Instruments |
50 |
ARTICLE SIXTEEN Subordination of Debt Securities |
51 |
Section 1601. |
Debt Securities Subordinate to Senior Debt |
51 |
Section 1602. |
Trustee and Holders of Debt Securities May Rely on
Certificate of Liquidating Agent; Trustee May Require Further Evidence as to Ownership of Senior Debt; Trustee Not Fiduciary to
Holders of Senior Debt |
52 |
Section 1603. |
Payment Permitted If No Default |
53 |
Section 1604. |
Trustee Not Charged with Knowledge of Prohibition |
53 |
Section 1605. |
Trustee to Effectuate Subordination |
53 |
Section 1606. |
Rights of Trustee as Holder of Senior Debt |
53 |
Section 1607. |
Article Applicable to Paying Agents |
53 |
Section 1608. |
Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Debt |
53 |
EXHIBITS |
|
|
|
Exhibit A-1 |
|
Exhibit A-2 |
|
Exhibit B |
|
INDENTURE (the “Indenture”)
dated as of [_______________], between AudioEye, Inc., a Delaware corporation (hereinafter called the “Company”), having
its principal place of business at 5210 E. Williams Circle, Suite 750, Tucson, Arizona, 85711, and [_________________], (hereinafter
called the “Trustee”), a national banking association duly organized and validly existing under the laws of the United States
of America having its Corporate Trust Office at [_______________________________].
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 subordinated debentures, notes, bonds
and other evidences of indebtedness (herein called the “Debt Securities”).
All things necessary have been
done to make this Indenture a valid agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE
WITNESSETH:
For and in consideration of
the premises and the purchase of the Debt Securities of any series created and issued on or after the date hereof by the Holders thereof,
it is mutually covenanted and agreed for the benefit of all Holders of such Debt Securities or of any such series, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101.
Definitions.
For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms
defined in this Article have the meanings assigned to them in this Article, and include the plural as well as the singular;
(2) all other
terms used herein which are defined in the Trust Indenture Act or by Commission rule or regulation under the Trust Indenture Act,
either directly or by reference therein, as in force at the date as of which this instrument was executed, except as provided in Section 905,
have the meanings assigned to them therein;
(3) all accounting
terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles, and,
except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation
required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States at the date of such
computation; and
(4) 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.
Certain terms, used principally
in Article Six, are defined in that Article.
“Act” when used
with respect to any Holder has the meaning specified in Section 104.
“Affiliate” of any
specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control
with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting
securities by contract or otherwise, and the terms “controlling” and “controlled” have meanings correlative to
the foregoing.
“Authorized Newspaper”
means a newspaper in an official language of the country of publication or in the English language customarily published on each Business
Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in the place in connection with which the
term is used or in the financial community of such place. Where successive publications are required to be made in Authorized Newspapers,
the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing requirements and
in each case on any Business Day.
“Bankruptcy Law”
means Title 11 of the United States Code (or any successor thereto) or any similar federal or state law for the relief of debtors.
“Bearer Security”
means any Debt Security established pursuant to Section 201 which is payable to bearer including, without limitation, unless the
context otherwise indicates, a Debt Security in global bearer form.
“Board of Directors”
means either the board of directors of the Company, or the executive or any other committee of that board duly authorized to act in respect
hereof.
“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee. Where any provision of
this Indenture refers to action to be taken pursuant to a Board Resolution (including the establishment of any series of the Debt Securities
and the forms and terms thereof), such action may be taken by any committee of the Board of the Company or any officer or employee of
the Company authorized to take such action by a Board Resolution.
“Business Day”,
when used with respect to any Place of Payment, means any day which is not a Saturday or Sunday and which is not a legal holiday or a
day on which banking institutions or trust companies in that Place of Payment are authorized or obligated by law or executive order to
close.
“Capital Stock”
of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests
in (however designated) equity of such Person, but excluding any debt securities convertible into such equity.
“Clearstream ” means
Clearstream Banking S.A.
“Commission” means
the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or if at any time after the
execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties on such date.
“Company” means
the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“Company
Request” and “Company Order” mean, respectively, except as otherwise provided in this Indenture, a written request
or order signed in the name of the Company by the Chairman of the Board, a Vice Chairman of the Board, the President or a Vice
President (any references to a Vice President of the Company herein shall be deemed to include any Vice President of the Company
whether or not designated by a number or word or words added before or after the title “Vice President”), the Treasurer,
an Assistant Treasurer, the Controller, an Assistant Controller, Secretary or an Assistant Secretary of the Company or by another
officer of the Company duly authorized to sign by a Board Resolution, and delivered to the Trustee.
“Corporate Trust Office”
means the principal office of the Trustee at which at any particular time its corporate trust business shall be administered, which office
at the date of original execution of this Indenture is located at [__________________________].
The term “corporation”
includes corporations, associations, companies and business trusts.
The term “coupon”
means any interest coupon appertaining to a Bearer Security.
“Debt Securities”
has the meaning stated in the first recital of this Indenture and more particularly means any Debt Securities authenticated and delivered
under this Indenture.
“Defaulted Interest”
has the meaning specified in Section 307.
“Depositary” means,
with respect to the Debt Securities of any series issuable or issued in the form of a Global Security, the Person designated as Depositary
by the Company pursuant to Section 301 until a successor Depositary shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter “Depositary” shall mean or include each person who is then a Depositary hereunder, and if
at any time there is more than one such Person, “Depositary” as used with respect to the Debt Securities of any such series
shall mean the Depositary with respect to the Debt Securities of that series.
“Designated Currency”
has the meaning specified in Section 312.
“Dollar” or “$”
means the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private
debts.
“Eligible Instruments”
means monetary assets, money market instruments and securities that are payable in Dollars only and essentially risk free as to collection
of principal and interest, including U.S. Government Obligations.
“Euro” means the
single currency of the European Monetary Union as defined under EC Regulation 1103/97 adopted under Article 235 of the EU Treaty
and under EC Regulation 974/98 adopted under Article 109l(4) of the EU Treaty or under any successor European legislation from
time to time.
“Euroclear” means
Euroclear Bank S.A./N.V., as operator of the Euroclear System.
“Event of Default”
has the meaning specified in Section 501.
“Exchange Act” means
the Securities Exchange Act of 1934, as amended.
“Exchange Rate”
shall have the meaning specified as contemplated in Section 301.
“Exchange Rate Agent”
shall have the meaning specified as contemplated in Section 301.
“Exchange Rate Officer’s
Certificate”, with respect to any date for the payment of principal of (and premium, if any) and interest on any series of Debt
Securities, means a certificate setting forth the applicable Exchange Rate and the amounts payable in Dollars and Foreign Currencies in
respect of the principal of (and premium, if any) and interest on Debt Securities denominated in Euro, any other composite currency or
Foreign Currency, and signed by the Chairman of the Board, a Vice Chairman of the Board, the President, a Vice President, the Treasurer
or any Assistant Treasurer of the Company or the Exchange Rate Agent appointed pursuant to Section 301, and delivered to the Trustee.
“Foreign Currency”
means a currency issued by the government of any country other than the United States of America.
“GAAP” means generally
accepted accounting principles in the United States as used by the Financial Accounting Standards Board and/or the American Institute
of Certified Public Accountants, consistently applied.
“Global Exchange Agent”
has the meaning specified in Section 304.
“Global Exchange Date”
has the meaning specified in Section 304.
“Global Security”
means a Debt Security issued to evidence all or part of a series of Debt Securities in accordance with Section 303.
“Holder”, with respect
to a Registered Security, means a Person in whose name such Registered Security is registered in the Security Register and, with respect
to a Bearer Security or a coupon, means the bearer thereof.
“Indebtedness” means,
with respect to any specified Person, all obligations of such Person, whether or not contingent:
(i)(a) for
borrowed money (including, but not limited to, any indebtedness secured by a security interest, mortgage or other lien on the assets
of such Person that is (1) given to secure all or part of the purchase price of property subject thereto, whether given to the
vendor of such property or to another, or (2) existing on property at the time of acquisition thereof), (b) evidenced by a
note, debenture, bond or other similar written instrument, (c) under a lease required to be capitalized on the balance sheet of
the lessee under GAAP, or under any lease or related document (including a purchase agreement) that provides that such Person is
contractually obligated to purchase or cause a third party to purchase and thereby guarantee a minimum residual value of the lease
property to the lessor and such Person’s obligations under such lease or related document to purchase or to cause a third
party to purchase such leased property, (d) in respect of letters of credit, bank guarantees or bankers’ acceptances
(including reimbursement obligations with respect to any of the foregoing), (e) obligations secured by a mortgage, pledge,
lien, charge or similar encumbrance to which the property or assets of such Person are subject, whether or not the obligation
secured thereby shall have been assumed by or shall otherwise be such Person’s legal liability, (f) in respect of the
balance of deferred and unpaid purchase price of any property or assets, and (g) under interest rate or currency swap
agreements, cap, floor and collar agreements, spot and forward contracts and similar agreements and arrangements;
(ii) with respect
to any obligation of others of the type described in the preceding clause (i) or under clause (iii) below assumed by or guaranteed
in any manner by such Person (including, without limitation, through “take or pay” and similar arrangements), contingent or
otherwise (and the obligations of such Person under any such assumptions, guarantees or other such arrangements); and
(iii) any and
all deferrals, renewals, extensions, refinancing and refunding of, or amendments, modifications or supplements to, any of the foregoing.
The amount of any Indebtedness outstanding as
of any date shall be (i) the accreted value thereof, in the case of any Indebtedness issued with original issue discount; and (ii) the
principal amount thereof, together with any interest thereon that is more than 30 days past due, in the case of any other Indebtedness.
“Indenture” means
this instrument as originally executed or as it may from time to time be supplemented, amended or restated by or pursuant to one or more
indentures supplemental hereto entered into pursuant to the applicable provisions hereof and, unless the context otherwise requires, shall
include the terms of a particular series of Debt Securities established as contemplated by Section 301.
The term “interest”,
when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable
after Maturity.
“Interest Payment Date”,
with respect to any Debt Security, means the Stated Maturity of an installment of interest on such Debt Security.
“Maturity”, when
used with respect to any Debt Security, means the date on which the principal of such Debt Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption, repayment at the option of
the Holder or otherwise.
“Officers’ Certificate”
means a certificate signed by the Chairman of the Board, a Vice Chairman of the Board, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or an Assistant Secretary of the Company, and delivered
to the Trustee.
“Opinion of Counsel”
means a written opinion of counsel, who may (except as otherwise expressly provided in this Indenture) be an employee of or counsel for
the Company, or who may be other counsel, which is delivered to the Trustee.
“Original Issue Discount
Security” means any Debt Security which provides for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
“Outstanding”, when
used with respect to Debt Securities means, as of the date of determination, all Debt Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Debt Securities
theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(ii) Debt Securities
or portions thereof for whose payment or redemption money or Eligible Instruments in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Debt Securities and any coupons appertaining thereto; provided, however,
that if such Debt 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; and
(iii) Debt
Securities in exchange for or in lieu of which other Debt Securities have been authenticated and delivered, or which have been paid, pursuant
to this Indenture;
provided,
however, that in determining whether the Holders of the requisite principal amount of Debt Securities Outstanding have given
any request, demand, authorization, direction, notice, consent or waiver hereunder, Debt Securities owned by the Company or any other
obligor upon the Debt Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying upon such request, demand, authorization, direction, notice,
consent or waiver, only Debt Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded.
Debt Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so
to act with respect to such Debt Securities and that the pledgee is not the Company or any other obligor upon the Debt Securities or any
Affiliate of the Company or of such other obligor.
“Paying Agent” means
any Person authorized by the Company to pay the principal of (and premium, if any) or interest on any Debt Securities on behalf of the
Company.
“Person” means any
individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof.
“Place of Payment”,
when used with respect to the Debt Securities of any series means any place where the principal of (and premium, if any) and interest
on the Debt Securities of that series are payable as specified as contemplated by Section 301.
“Predecessor Security”
of any particular Debt Security means every previous Debt Security evidencing all or a portion of the same debt as that evidenced by such
particular Debt Security; and, for the purposes of this definition, any Debt Security authenticated and delivered under Section 306
in lieu of a lost, destroyed or stolen Debt Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Debt Security.
“ranking junior to the
Debt Securities”, when used with respect to any obligation of the Company shall mean any obligation of the Company which (a) ranks
junior to and not equally with or prior to the Debt Securities (or any other obligations of the Company ranking on a parity with the Debt
Securities) in right of payment upon the happening of any event of the kind specified in the first sentence of the second paragraph in
Section 1601 or (b) is specifically designated as ranking junior to the Debt Securities by express provision in the instrument
creating or evidencing such obligation. The securing of any obligations of the Company, otherwise ranking junior to the Debt Securities,
shall be deemed to prevent such obligations from constituting obligations ranking junior to the Debt Securities.
“ranking on a parity with
the Debt Securities”, when used with respect to any obligation of the Company shall mean any obligation of the Company which (a) ranks
equally with and not prior to the Debt Securities in right of payment upon the happening of any event of the kind specified in the first
sentence of the second paragraph in Section 1601 or (b) is specifically designated as ranking on a parity with the Debt Securities
by express provision in the instrument creating or evidencing such obligation. The securing of any obligations of the Company, otherwise
ranking on a parity with the Debt Securities, shall not be deemed to prevent such obligations from constituting obligations ranking on
a parity with the Debt Securities.
“Redemption Date”,
when used with respect to any Debt Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price”,
when used with respect to any Debt Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
“Registered Security”
means any Debt Security in the form of Registered Securities established pursuant to Section 201 which is registered in the Security
Register.
“Regular Record Date”
for the interest payable on any Interest Payment Date on the Registered Securities of any series means the date specified for that purpose
as contemplated by Section 301.
“Remarketing Entity”,
when used with respect to Debt Securities of any series which are repayable at the option of the Holders thereof before their Stated Maturity,
means any person designated by the Company to purchase any such Debt Securities.
“Repayment Date”,
when used with respect to any Debt Security to be repaid upon exercise of an option for repayment by the Holder, means the date fixed
for such repayment pursuant to this Indenture.
“Repayment Price”,
when used with respect to any Debt Security to be repaid upon exercise of an option for repayment by the Holder, means the price at which
it is to be repaid pursuant to this Indenture.
“Responsible Officer”
when used with respect to the Trustee, means any vice president, any assistant vice president, any senior trust officer or assistant trust
officer, any trust officer, or any other officer associated with the corporate trust department 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 such person’s knowledge of and familiarity with the particular
subject.
“Security Register”
and “Security Registrar” have the respective meanings specified in Section 305.
“Senior Debt” means
the principal of, premium, if any, and interest on, rent under, and any other amounts payable on or in respect of any Indebtedness of
the Company (including, without limitation, any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any Indebtedness in respect of such Indebtedness and any interest accruing after
the filing of a petition by or against the Company under any Bankruptcy Law, whether or not allowed as a claim after such filing in any
proceeding under such Bankruptcy Law), whether outstanding on the date of this Indenture or thereafter created, incurred, assumed, guaranteed
or in effect guaranteed by the Company (including all deferrals, renewals, extensions, refinancing or refunding of, or amendments, modifications
or supplements to the foregoing); provided, however, that Senior Debt does not include:
(i) any liability
for Federal, state, local or other taxes owed or owing by the Company;
(ii) Indebtedness
of the Company to any Subsidiary of the Company;
(iii) trade
payables and accrued expenses (including, without limitation, accrued compensation) of the Company for goods, services or materials purchased
or provided in the ordinary course of business, and
(iv) any particular
Indebtedness in which the instrument creating or evidencing the same expressly provides that such Indebtedness shall not be senior in
right of payment to, or is pari passu with, or is subordinated or junior to, the Debt Securities.
“Special Record Date”
for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 307.
“Stated Maturity,”
when used with respect to any Debt Security or any installment of interest thereon, means the date specified in such Debt Security or
a coupon representing such installment of interest as the fixed date on which the principal of such Debt Security or such installment
is due and payable.
“Subsidiary” means,
in respect of any Person, any corporation, association, partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of any contingency within the control of such Person to satisfy)
to vote in the election of directors, managers, general partners or trustees thereof is at the time owned or controlled, directly or indirectly,
by (i) such Person, (ii) such Person and one or more Subsidiaries of such Person, or (iii) one or more Subsidiaries of
such Person.
“Trust Indenture Act”
means the Trust Indenture Act of 1939, as amended, as in force at the date as of which this instrument was executed, except as provided
in Section 905.
“Trustee” means
the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is
then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Debt
Securities of any series shall mean the Trustee with respect to Debt Securities of that series.
“United States”
means the United States of America (including the District of Columbia) and its possessions.
“United States Alien”
means any Person who, for United States Federal income tax purposes, is a foreign corporation, a non-resident alien individual, a non-resident
alien fiduciary of a foreign estate or trust, or a foreign partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a non-resident alien fiduciary of a foreign estate or trust.
“U.S. Government Obligations”
means direct obligations of the United States for the payment of which its full faith and credit is pledged, or obligations of a person
controlled or supervised by and acting as an agency or instrumentality of the United States the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States, and shall also include a depository receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such U.S. Government Obligation held by such custodian for the account
of the holder of such depository receipt, provided that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of principal of or interest on the U.S. Government Obligation evidenced by such depository
receipt.
Section 102.
Compliance Certificates and Opinions.
Upon any application or request
by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee, if so
requested by the Trustee, an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion
with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(1) a statement
that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(2) a brief
statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate
or opinion are based;
(3) a statement
that, in the opinion of each such individual, he or she has made such examination or investigation as is necessary to enable him or her
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, in the opinion of each such individual, such condition or covenant has been complied with.
Section 103.
Form of Documents Delivered to Trustee.
In any case where several matters
are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person
may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of
an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by,
counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers
of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate or opinions or representations with respect to such matters
are erroneous.
Where any Person is required
to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one instrument.
Section 104.
Acts of Holders.
(a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied
in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed
in writing. If Debt Securities of a series are issuable in whole or in part as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may, alternatively, be embodied
in and evidenced by the record of Holders of Debt Securities voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Debt Securities duly called and held in accordance with the provisions of Article Fourteen,
or a combination of such instruments and any such record. Except as herein otherwise expressly provided, such action shall become effective
when such instrument or instruments or record or both are delivered to the Trustee, and, where it is hereby expressly required, to the
Company. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the “Act” of the Holders signing such instrument or instruments and so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or the holding by any Person of a Debt Security, shall be
sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section. The record of any meeting of Holders of Debt Securities shall be proved in the manner provided
in Section 1406.
(b) The fact and date of
the execution by any Person of any such instrument or writing may be proved in any manner which the Trustee deems sufficient.
(c) The ownership of Registered
Securities shall be proved by the Security Register.
(d) The principal amount
and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may be proved by the production of such
Bearer Securities or by a certificate executed, as depositary, by any trust company, bank, banker or other depositary, wherever situated,
if such certificate shall be deemed by the Trustee to be satisfactory, showing that at the date therein mentioned such Person had on deposit
with such depositary, or exhibited to it, the Bearer Securities in the amount and with the serial numbers therein described; or such facts
may be proved by the certificate or affidavit of the Person holding such Bearer Securities, if such certificate or affidavit is deemed
by the Trustee to be satisfactory. The Trustee and the Company may assume that such ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the same Bearer Security is produced, or (2) such Bearer Security
is produced to the Trustee by some other person, or (3) such Bearer Security is surrendered in exchange for a Registered Security,
or (4) such Bearer Security is no longer Outstanding.
(e) The fact and date of
execution of any such instrument or writing, the authority of the Person executing the same and the principal amount and serial numbers
of Bearer Securities held by the Person so executing such instrument or writing and the date of holding the same may also be proved in
any other manner which the Trustee deems sufficient; and the Trustee may in any instance require further proof with respect to any of
the matters referred to in this Section.
(f) Any request, demand,
authorization, direction, notice, consent, waiver or other Act of the Holder of any Debt Security shall bind every future holder of the
same Debt Security and the Holder of every Debt Security issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, suffered or omitted by the Trustee or the Company in reliance thereon, whether or not notation
of such action is made upon such Debt Security.
(g) For purposes of determining
the principal amount of Outstanding Debt Securities of any series the Holders of which are required, requested or permitted to give any
request, demand, authorization, direction, notice, consent, waiver or take any other Act under this Indenture, (i) each Original
Issue Discount Security shall be deemed to have the principal amount determined by the Trustee that could be declared to be due and payable
pursuant to the terms of such Original Issue Discount Security as of the date there is delivered to the Trustee and, where it is hereby
expressly required, to the Company, such Act by Holders of the required aggregate principal amount of the Outstanding Debt Securities
of such series and (ii) each Debt Security denominated in a Foreign Currency or composite currency shall be deemed to have the principal
amount determined by the Exchange Rate Agent by converting the principal amount of such Debt Security in the currency in which such Debt
Security is denominated into Dollars at the Exchange Rate as of the date such Act is delivered to the Trustee and, where it is hereby
expressly required, to the Company, by Holders of the required aggregate principal amount of the Outstanding Debt Securities of such series
(or, if there is no such rate on such date, such rate on the date determined as specified as contemplated in Section 301).
(h) The Company may set
a record date for purposes of determining the identity of Holders of Debt Securities of any series entitled to vote or consent to any
action by vote or consent authorized or permitted by Section 512 or Section 513. Such record date shall be the later of 30 days
prior to the first solicitation of such consent or the date of the most recent list of Holders of such Debt Securities furnished to the
Trustee pursuant to Section 701 prior to such solicitation.
Section 105.
Notices, etc., to Trustee and Company.
Any request, demand, authorization,
direction, notice, consent, waiver or other Act of Holders or other document provided or permitted by this Indenture to be made upon,
given or furnished to, or filed with,
(1) the Trustee
by any Holder or by the Company shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided), if made,
given, furnished or filed in writing (which may be via original or facsimile) to or with the Trustee at its Corporate Trust Office and
which shall be deemed delivered when actually received by a Responsible Officer of the Trustee, or
(2) the
Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company addressed to the attention of its Secretary at the address of
its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to
the Trustee by the Company.
The Trustee agrees to accept
and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured
electronic methods; provided, however, that (a) the party providing such electronic instructions or directions, subsequent
to the transmission thereof, shall provide the originally executed instructions or directions to the Trustee in a timely manner and (b) such
originally executed instructions or directions shall be signed by an authorized representative of the party providing such instructions
or directions. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s
reliance upon and compliance with such instructions or directions notwithstanding such instructions or directions conflict or are inconsistent
with a subsequent written instruction or direction or if the subsequent written instruction or direction is never received. The party
providing instructions or directions by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods, as aforesaid,
agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including
without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
Section 106.
Notice to Holders; Waiver.
Except as otherwise expressly
provided herein, where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given to Holders
of Registered Securities if in writing and mailed, first-class postage prepaid (or, with respect to Global Securities, delivered in accordance
with the Depositary’s applicable procedures), to each Holder of a Registered Security affected by such event, at such Holder’s
address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice.
In any case where notice to
Holders of Registered Securities is to be given by mail, (a) if, by reason of the suspension of or irregularities in regular mail
service or for any other reason, it shall be impossible or impracticable to mail notice of any event to Holders of Registered Securities
when said notice is required to be given pursuant to any provision of this Indenture or of the Debt Securities, then any manner of giving
such notice as shall be satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice and (b) neither the
failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered Securities.
Where this Indenture provides
for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the
event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Any request, demand, authorization,
direction, notice, consent, election, waiver or other Act required or permitted under this Indenture shall be in the English language.
Notwithstanding any other provision
of this Indenture or any Debt Security, where this Indenture or any Debt Security provides for notice of any event or any other communication
(including any notice of redemption or repurchase) to a Holder of a Global Security (whether by mail or otherwise), such notice shall
be sufficiently given if given to the Depositary (or its designee) pursuant to the standing instructions from the Depositary or its designee,
including by electronic mail in accordance with accepted practices at the Depositary.
Section 107.
Conflict with Trust Indenture Act.
If any provision hereof limits,
qualifies or conflicts with another provision hereof which is required to be included in this Indenture by any of the provisions of the
Trust Indenture Act, such required provision shall control.
Section 108.
Effect of Headings and Table of Contents.
The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 109.
Successors and Assigns.
All covenants and agreements
in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
Section 110.
Separability Clause.
In case any provision in this
Indenture or in the Debt Securities or any coupons 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.
Section 111.
Benefits of Indenture.
Nothing in this Indenture or
in the Debt Securities or any coupons, express or implied, shall give to any Person, other than the parties hereto and their successors
hereunder, any Paying Agent and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 112.
Governing Law.
This Indenture and the Debt
Securities and any coupons shall be governed by and construed in accordance with the laws of the State of New York.
Section 113.
Legal Holidays.
In any case where any Interest
Payment Date, Redemption Date, Repayment Date or Stated Maturity of any Debt Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Debt Securities or coupons) payment of interest or principal (and
premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place
of Payment with the same force and effect as if made on the Interest Payment Date, Redemption Date, Repayment Date or at the Stated Maturity,
and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date, Repayment
Date or Stated Maturity, as the case may be.
Section 114.
Counterparts.
This Indenture may be executed
in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute
but one and the same Indenture.
Section 115.
Exemption from Individual Liability.
No recourse under or upon any
obligation, covenant or agreement of this Indenture, or of any Debt Security or any coupon, or for any claim based thereon or otherwise
in respect thereof, shall be had against any incorporator, stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Indenture and the obligations
issued hereunder are solely corporate obligations of the Company, and that no such personal liability whatever shall attach to, or is
or shall be incurred by, the incorporators, stockholders, officers or directors, as such, of the Company or any successor corporation,
or any of them, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or
agreements contained in this Indenture or in any of the Debt Securities or any coupon or implied therefrom; and that any and all such
personal liability, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director, as such, because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Debt Securities or any coupon
or implied, therefrom are hereby expressly waived and released as a condition of and as a consideration for, the execution of this Indenture
and the issue of such Debt Securities.
ARTICLE TWO
Debt Security Forms
Section 201.
Forms Generally.
The Registered Securities, if
any, and the Bearer Securities and related coupons, if any, of each series shall be in substantially the form (including temporary or
permanent global form) as shall be established in or pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture,
and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon, as may be required
to comply with the rules of any securities exchange, or as may, consistently herewith, be determined by the officers executing such
Debt Securities or coupons, as evidenced by their signatures on the Debt Securities or coupons. If the form of Debt Securities of any
series or coupons (including any such Global Security) is established by action taken pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such Debt Securities
or coupons.
Unless otherwise specified as
contemplated by Section 301, Debt Securities in bearer form other than Debt Securities in temporary or permanent global form shall
have coupons attached.
The definitive Debt Securities
and coupons, if any, shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Debt Securities, as evidenced by the execution of such Debt Securities and coupons.
Section 202.
Form of Trustee’s Certificate of Authentication.
This is one of the Debt Securities,
of the series designated herein, described in the within-mentioned Indenture.
|
[____________________], |
|
as Trustee |
|
|
|
By |
|
|
Authorized Signatory |
|
|
|
Dated |
|
Section 203.
Debt Securities in Global Form.
If Debt Securities of a series
are issuable in whole or in part in global form, as specified as contemplated by Section 301, then, notwithstanding clause (10) of
Section 301 and the provisions of Section 302, such Global Security shall represent such of the outstanding Debt Securities
of such series as shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding Debt Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding Debt Securities represented thereby may from time to time
be reduced to reflect exchanges. Any endorsement of a Global Security to reflect the amount, or any increase or decrease in the amount,
of Outstanding Debt Securities represented thereby shall be made in such manner and upon instructions given by such Person or Persons
as shall be specified therein or in the Company Order to be delivered to the Trustee pursuant to Section 303 or Section 304.
The provisions of the last sentence
of Section 303(g) shall apply to any Debt Securities represented by a Debt Security in global form if such Debt Security was
never issued and sold by the Company and the Company delivers to the Trustee the Debt Security in global form together with written instructions
(which need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) with respect to the reduction in the
principal amount of Debt Securities represented thereby, together with the written statement contemplated by the last sentence of Section 303(g).
Global Securities may be issued
in either registered or bearer form and in either temporary or permanent form.
ARTICLE THREE
The Debt Securities
Section 301. Amount Unlimited; Issuance in Series.
The aggregate principal amount
of Debt Securities which may be authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued
in one or more series. There shall be established in or pursuant to a Board Resolution, and set forth in an Officers’ Certificate,
or established in one or more indentures supplemental hereto, prior to the issuance of Debt Securities of any series:
(1) the title
of the Debt Securities of the series;
(2) the limit,
if any, upon the aggregate principal amount of the Debt Securities of the series which may be authenticated and delivered under this Indenture
(except for Debt Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Debt
Securities of the series pursuant to Section 304, 305, 306, 906, 1107 or 1303 and except for any Debt Securities which, pursuant
to Section 303, are deemed never to have been authenticated and delivered hereunder);
(3) the date
or dates on which the principal and premium, if any, of the Debt Securities of the series are payable;
(4) the rate
or rates, if any, at which the Debt Securities of the series shall bear interest, or the method or methods by which such rate or rates
may be determined, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be
payable, the Regular Record Date for the interest payable on any Registered Security on any Interest Payment Date and the circumstances,
if any, in which the Company may defer interest payments;
(5) the place
or places where, subject to the provisions of Section 1002, the principal of (and premium, if any) and interest on Debt Securities
of the series shall be payable, any Registered Securities of the series may be surrendered for registration of transfer, Debt Securities
of the series may be surrendered for exchange and notices and demands to or upon the Company in respect of the Debt Securities of the
series and this Indenture may be served and where notices to Holders pursuant to Section 106 will be published;
(6) if applicable,
the period or periods within which or the date or dates on which, the price or prices at which and the terms and conditions upon which
Debt Securities of the series may be redeemed, in whole or in part, at the option of the Company;
(7) the obligation,
if any, of the Company to redeem, repay or purchase Debt 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 Debt Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;
(8) whether
Debt Securities of the series are to be issuable as Registered Securities, Bearer Securities or both, whether Debt Securities of the series
are to be issuable with or without coupons or both and, in the case of Bearer Securities, the date as of which such Bearer Securities
shall be dated if other than the date of original issuance of the first Debt Security of such series of like tenor and term to be issued;
(9) whether
the Debt Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities and, in such case,
the Depositary for such Global Security or Securities, whether such global form shall be permanent or temporary and, if applicable, the
Global Exchange Date and Global Exchange Agent;
(10) if Debt Securities
of the series are to be issuable initially in the form of a temporary Global Security, the circumstances under which the temporary Global
Security can be exchanged for definitive Debt Securities and whether the definitive Debt Securities will be Registered and/or Bearer Securities
and will be in global form and whether interest in respect of any portion of such Global Security payable in respect of an Interest Payment
Date prior to the Global Exchange Date shall be paid to any clearing organization with respect to a portion of such Global Security held
for its account and, in such event, the terms and conditions (including any certification requirements) upon which any such interest payment
received by a clearing organization will be credited to the Persons entitled to interest payable on such Interest Payment Date if other
than as provided in this Article Three;
(11) whether, and
under what conditions, additional amounts will be payable to Holders of Debt Securities of the series pursuant to Section 1004;
(12) the denominations
in which any Registered Securities of the series shall be issuable, if other than denominations of $1,000 and any integral multiple thereof,
and the denominations in which any Bearer Securities of such series shall be issuable, if other than the denomination of $5,000;
(13) if other than
the principal amount thereof, the portion of the principal amount of Debt Securities of the series which shall be payable upon declaration
of acceleration of the Maturity thereof pursuant to Section 502;
(14) the currency
or currencies of denomination of the Debt Securities of any series, which may be in Dollars, any Foreign Currency or any composite currency,
including but not limited to the Euro, and, if any such currency of denomination is a composite currency other than the Euro, the agency
or organization, if any, responsible for overseeing such composite currency;
(15) the currency
or currencies in which payment of the principal of (and premium, if any) and interest on the Debt Securities will be made, the currency
or currencies, if any, in which payment of the principal of (and premium, if any) or the interest on Registered Securities, at the election
of each of the Holders thereof, may also be payable and the periods within which and the terms and conditions upon which such election
is to be made, and the Exchange Rate and the person who shall be the Exchange Rate Agent for the Debt Securities of such series;
(16) if payments
of principal of (and premium, if any) or interest on the Debt Securities of the series are to be made in a Foreign Currency other than
the currency in which such Debt Securities are denominated, the manner in which the Exchange Rate with respect to such payments shall
be determined;
(17) any Events
of Default with respect to Debt Securities of such series, if not set forth herein;
(18) any other covenant
or warranty included for the benefit of the Debt Securities of the series in addition to (and not inconsistent with) those set forth herein
for the benefit of Debt Securities of all series, or any other covenant or warranty included for the benefit of Debt Securities of the
series in lieu of any covenant or warranty set forth herein for the benefit of Debt Securities of all series, or any provision that any
covenant or warranty set forth herein for the benefit of Debt Securities of all series shall not be for the benefit of Debt Securities
of such series, or any combination of such covenants, warranties or provisions and whether the provisions of Section 1006 will not apply
such covenants and warranties;
(19) the terms and
conditions, if any, pursuant to which the Company’s obligations under this Indenture may be terminated through the deposit of money
or Eligible Instruments as provided in Articles Four and Fifteen;
(20) the Person
or Persons who shall be Security Registrar for the Debt Securities of such series if other than the Trustee, and the place or places where
the Security Register for such series shall be maintained and the Person or Persons who will be the initial Paying Agent or Agents, if
other than the Trustee; and
(21) any other terms
of the series (which terms shall not be inconsistent with the provisions of this Indenture).
All Debt Securities of any one
series and the coupons appertaining to Bearer Securities of such series, if any, shall be substantially identical except, in the case
of Registered Securities, as to denomination and except as may otherwise be provided in or pursuant to such Board Resolution and set forth
in such Officers’ Certificate or in any such indenture supplemental hereto.
Debt Securities of any particular
series may be issued at various times, with different dates on which the principal or any installment of principal is payable, with different
rates of interest, if any, or different methods by which rates of interest may be determined, with different dates on which such interest
may be payable and with different Redemption or Repayment Dates and may be denominated in different currencies or payable in different
currencies.
If any of the terms of a series
of Debt Securities are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall
be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the
Officers’ Certificate setting forth the terms of the series.
Section 302. Denominations.
Debt Securities of each series
shall be issuable in such form and denominations as shall be specified in the form of Debt Security for such series approved or established
pursuant to Section 201 or in the Officers’ Certificate delivered pursuant to Section 301. In the absence of any specification with
respect to the Debt Securities of any series, the Registered Securities of such series, if any, shall be issuable in denominations of
$1,000 and any integral multiple thereof and the Bearer Securities of such series, if any, shall be issuable in denominations of $5,000.
Section. 303. Execution,
Authentication, Delivery and Dating.
(a) The Debt Securities shall
be executed on behalf of the Company by its Chairman of the Board, a Vice Chairman of the Board, the President or a Vice President, and
by its Treasurer or one of its Assistant Treasurers or its Secretary or one of its Assistant Secretaries under its corporate seal reproduced
thereon. The signature of any of these officers on the Debt Securities may be manual or facsimile. Coupons shall bear the facsimile signature
of an authorized officer of the Company.
Debt Securities and coupons
bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such
Debt Securities or coupons of any series or did not hold such offices at the date of such Debt Securities or coupons.
(b) At any time and from time
to time after the execution and delivery of this Indenture, Debt Securities of any series may be executed by the Company and delivered
to the Trustee for authentication, and, except as otherwise provided in this Article Three, shall thereupon be authenticated and delivered
by the Trustee upon Company Order, without any further action by the Company; provided, however, that, in connection with its original
issuance, a Bearer Security may be delivered only outside the United States and, except in the case of a temporary Global Security, only
if the Company or its agent shall have received the certification required pursuant to Sections 304(b)(iii) and (iv), unless such certification
shall have been provided earlier pursuant to section 304(b)(v) hereof, and only if the Company has no reason to know that such certification
is false.
To the extent authorized in
or pursuant to a Board Resolution and set forth in an Officers’ Certificate, or established in one or more indentures supplemental
hereto, such written Company Order may be given by any one officer or employee of the Company, may be electronically transmitted, and
may provide instructions as to registration of holders, principal amounts, rates of interest, maturity dates and other matters contemplated
by such Board Resolution and Officers’ Certificate or supplemental indenture to be so instructed in respect thereof. Before authorizing
and delivering the first Debt Securities of any series (and upon request of the Trustee thereafter), the Company shall deliver to the
Trustee (i) the certificates called for under Sections 201 and 301 hereof and (ii) an Opinion of Counsel described in the next sentence.
In authenticating such Debt
Securities, and accepting the additional responsibilities under this Indenture in relation to any such Debt Securities, the Trustee shall
be entitled to receive, prior to the initial authentication of such Debt Securities, and (subject to Section 601) shall be fully protected
in relying upon:
(i) a Board Resolution relating
thereto and, if applicable, an appropriate record of any action taken pursuant to such resolution certified by the Secretary or an Assistant
Secretary of the Company;
(ii) an executed supplemental
indenture, if any, relating thereto;
(iii) an Officers’ Certificate
setting forth the form and terms of the Debt Securities of such series and coupons, if any, pursuant to Sections 201 and 301 and stating
that all conditions precedent provided for in this Indenture relating to the issuance of such Debt Securities have been complied with;
and
(iv) an Opinion of Counsel stating
(A) that the form
of such Debt Securities and coupons, if any, has been established in or pursuant to a Board Resolution or by a supplemental indenture
as permitted by Section 201 in conformity with the provisions of this Indenture;
(B) that the terms
of such Debt Securities and coupons, if any, have been established in or pursuant to a Board Resolution or by a supplemental indenture
as permitted by Section 301 in conformity with the provisions of this Indenture; and
(C) that such Debt
Securities and coupons, if any, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute legal, valid and binding obligations of the Company, enforceable
in accordance with their terms, subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors’ rights generally and the application of general principles of equity and except further as enforcement
thereof may be limited by (i) requirements that a claim with respect to any Debt Securities denominated other than in Dollars (or a Foreign
Currency or currency unit judgment in respect of such claim) be converted into Dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or (ii) governmental authority to limit, delay or prohibit the making of payments in Foreign Currencies or
currency units or payments outside the United States.
(c) If the Company shall establish
pursuant to Section 301 that the Debt Securities of a series are to be issued in whole or in part in the form of one or more Global Securities,
then the Company shall execute and the Trustee shall, in accordance with this Section and the Company Order with respect to such series,
authenticate and deliver one or more Global Securities in permanent or temporary form that (i) shall represent and shall be denominated
in an aggregate amount equal to the aggregate principal amount of the Outstanding Debt Securities of such series to be represented by
one or more Global Securities, (ii) shall be registered in the name of the Depositary for such Global Security or Securities or the nominee
of such Depositary and (iii) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary’s instructions.
(d) The Trustee shall have the
right to decline to authenticate and deliver any Debt Securities under this Section 303 if the issuance of such Debt Securities will adversely
affect the Trustee’s own rights, duties or immunities under the Debt Securities and this Indenture or otherwise in a manner which
is not reasonably acceptable to the Trustee.
(e) If all the Debt Securities
of any series are not to be issued at one time, it shall not be necessary to deliver an Opinion of Counsel at the time of issuance of
each Debt Security, but such Opinion of Counsel, with appropriate modifications, may instead be delivered at or prior to the time of the
first issuance of Debt Securities of such series.
(f) Each Registered Security
shall be dated the date of its authentication. Each Bearer Security shall be dated as of the date specified as contemplated by Section
301.
(g) No Debt Security or coupon
attached thereto shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless there appears
on such Debt Security a certificate of authentication substantially in the form provided for herein executed by the Trustee, and such
certificate upon any Debt Security shall be conclusive evidence, and the only evidence, that such Debt Security has been duly authenticated
and delivered hereunder. Except as permitted by Section 306, the Trustee shall not authenticate and deliver any Bearer Security unless
all related coupons for interest then matured have been detached and cancelled. Notwithstanding the foregoing, if any Debt Security or
portion thereof shall have been duly authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall
deliver such Debt Security to the Trustee for cancellation as provided in Section 309 together with a written statement (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel) stating that such Debt Security or portion thereof has never
been issued and sold by the Company, for all purposes of this Indenture such Debt Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this Indenture.
(h) Each Depositary designated
pursuant to Section 301 for a Global Security in registered form must, at the time of its designation and at all times while it serves
as Depositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Section 304. Temporary
Debt Securities.
(a) Pending the preparation
of definitive Debt Securities of any series, the Company may execute, and upon receipt of documents required by Sections 301 and 303,
together with a Company Order, the Trustee shall authenticate and deliver, temporary Debt Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any denomination, substantially of the tenor and terms of the definitive Debt Securities
in lieu of which they are issued in registered form or, if authorized, in bearer form with one or more coupons or without coupons, and
with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Debt Securities may determine,
as evidenced by their signatures on such Debt Securities. In the case of Debt Securities of any series issuable as Bearer Securities,
such temporary Debt Securities may be in global form, representing all or any part of the Outstanding Debt Securities of such series.
(b) Unless otherwise provided
pursuant to Section 301:
(i) Except in the
case of temporary Debt Securities in global form, if temporary Debt Securities of any series are issued, the Company will cause definitive
Debt Securities of such series to be prepared without unreasonable delay. After the preparation of definitive Debt Securities of such
series, the related temporary Debt Securities shall be exchangeable for such definitive Debt Securities upon surrender of the temporary
Debt Securities of such series at the office or agency of the Company in the Place of Payment for such series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Debt Securities of any series (accompanied, if applicable, by all unmatured
coupons and all matured coupons in default appertaining thereto), the Company shall execute and the Trustee shall authenticate and deliver
in exchange therefor a like principal amount of definitive Debt Securities of the same series of like tenor and terms and of authorized
denominations; provided, however, that no Bearer Security shall be delivered in exchange for a Registered Security; and provided,
further, that a Bearer Security shall be delivered in exchange for a Bearer Security only in compliance with the conditions set forth
in Section 305.
(ii) If Debt Securities
of any series are issued in temporary global form, any such temporary Global Security shall, unless otherwise provided pursuant to Section
301, be delivered to the Depositary for the benefit of Euroclear and Clearstream, for credit to the respective accounts of the beneficial
owners of such Debt Securities (or to such other accounts as they may direct).
(iii) Without unnecessary
delay but in any event not later than the date specified in, or determined pursuant to the terms of, any such temporary Global Security
(the “Global Exchange Date”), the Company shall deliver definitive Debt Securities to the Trustee or the agent appointed by
the Company pursuant to Section 301 to effect the exchange of the temporary Global Security for definitive Debt Securities (the “Global
Exchange Agent”), in an aggregate principal amount equal to the principal amount of such temporary Global Security, executed by
the Company. On or after the Global Exchange Date, such temporary Global Security shall be surrendered by the Depositary to the Global
Exchange Agent, to be exchanged, in whole or from time to time in part, for definitive Debt Securities without charge and the Trustee
or the Global Exchange Agent, if authorized by the Trustee pursuant to Section 614, shall authenticate and deliver, in exchange for each
portion of such temporary Global Security, an equal aggregate principal amount of definitive Debt Securities of the same series of authorized
denominations and of like tenor and terms as the portion of such temporary Global Security to be exchanged. Upon any exchange of a part
of such temporary Global Security for definitive Debt Securities, the portion of the principal amount and any interest thereon so exchanged
shall be endorsed by the Global Exchange Agent on a schedule to such temporary Global Security, whereupon the principal amount and interest
payable with respect to such temporary Global Security shall be reduced for all purposes by the amount so exchanged and endorsed. The
definitive Debt Securities to be delivered in exchange for any such temporary Global Security shall be in bearer form, registered form,
global registered form or global bearer form, or any combination thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; provided, however, that, in the case of the exchange of
the temporary Global Security for definitive Bearer Securities (including a definitive Global Bearer Security), upon such presentation
by the Depositary, such temporary Global Security shall be accompanied by a certificate signed by Euroclear as to the portion of such
temporary Global Security held for its account then to be exchanged and a certificate signed by Clearstream as to the portion of such
temporary Global Security held for its account then to be exchanged, each in the form set forth in Exhibit B to this Indenture, unless
such certificate(s) shall have been provided earlier pursuant to section 304(b)(v) hereof; and provided, further, that definitive
Bearer Securities (including a definitive Global Bearer Security) shall be delivered in exchange for a portion of a temporary Global Security
only in compliance with the requirements of Section 303.
(iv) The interest
of a beneficial owner of Debt Securities of a series in a temporary Global Security shall be exchanged for definitive Debt Securities
of the same series and of like tenor and terms following the Global Exchange Date when the account holder instructs Euroclear or Clearstream,
as the case may be, to request such exchange on such account holder’s behalf and, in the case of the exchange of the temporary Global
Security for definitive Bearer Securities (including a definitive Global Bearer Security), unless such certificate(s) shall have been
provided earlier pursuant to Section 304(b)(v) hereof, the account holder delivers to Euroclear or Clearstream, as the case may be, a
certificate in the form set forth in Exhibit A-1 and, if applicable, A-2 to this Indenture, dated no earlier than 15 days prior to the
Global Exchange Date, copies of which certificate shall be available from the offices of Euroclear and Clearstream, the Global Exchange
Agent, any authenticating agent appointed for such series of Debt Securities and each Paying Agent. Unless otherwise specified in such
temporary Global Security, any such exchange shall be made free of charge to the beneficial owners of such temporary Global Security,
except that a Person receiving definitive Debt Securities must bear the cost of insurance, postage, transportation and the like in the
event that such Person does not take delivery of such definitive Debt Securities in person at the offices of Euroclear and Clearstream.
Definitive Debt Securities in bearer form to be delivered in exchange for any portion of a temporary Global Security shall be delivered
only outside the United States.
(v) Until exchanged
in full as hereinabove provided, the temporary Debt Securities of any series shall in all respects be entitled to the same benefits under
this Indenture as definitive Debt Securities of the same series and of like tenor and terms authenticated and delivered hereunder, except
that interest payable on a temporary Global Security on an Interest Payment Date shall be payable to Euroclear and Clearstream on such
Interest Payment Date only if there has been delivered by Euroclear and Clearstream to the Global Exchange Agent a certificate or certificates
in the form set forth in Exhibit B to this Indenture dated no earlier than the first Interest Payment Date, for credit without further
interest on or after such Interest Payment Date to the respective accounts of the Persons who are the beneficial owners of such temporary
Global Security on such Interest Payment Date and who have each delivered to Euroclear or Clearstream, as the case may be, a certificate
in the form set forth in Exhibit A-1 and, if applicable, A-2 to this Indenture dated no earlier than the first Interest Payment Date.
Any interest so received by Euroclear and Clearstream and not paid as herein provided prior to the Global Exchange Date shall be returned
to the Global Exchange Agent which, upon expiration of two years after such Interest Payment Date, shall repay such interest to the Company
in accordance with Section 1003.
Section 305. Registration;
Registration of Transfer and Exchange.
The Company shall cause to be
kept at one of the offices or agencies to be maintained by the Company in accordance with the provisions of this Section 305 and Section
1002, with respect to the Debt Securities of each series which are Registered Securities, a register (herein sometimes referred to as
the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for
the registration of Registered Securities and of transfers of Registered Securities. Pursuant to Section 301, the Company shall appoint,
with respect to Debt Securities of each series which are Registered Securities, a “Security Registrar” for the purpose of
registering such Debt Securities and transfers and exchanges of such Debt Securities as herein provided.
Upon surrender for registration
of transfer of any Registered Security of any series at the office or agency of the Company maintained for such purpose, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered
Securities of the same series of any authorized denomination or denominations, of like tenor and terms and aggregate principal amount.
At the option of the Holder,
Registered Securities of any series may be exchanged for other Registered Securities of the same series of any authorized form and denomination,
of like tenor and terms and aggregate principal amount, upon surrender of the Registered Securities to be exchanged at such office or
agency. Bearer Securities may not be delivered in exchange for Registered Securities.
At the option of the Holder,
Registered Securities or Bearer Securities of any series may be issued in exchange for Bearer Securities (except as otherwise specified
as contemplated by Section 301 with respect to a Bearer Security in global form) of the same series, of any authorized denominations and
of like tenor and terms and aggregate principal amount, upon surrender of the Bearer Securities to be exchanged at any such office or
agency, with all unmatured coupons and all matured coupons in default thereto appertaining. If the Holder of a Bearer Security is unable
to produce any such unmatured coupon or coupons or matured coupon or coupons in default, such exchange may be effected if the Bearer Securities
are accompanied by payment in funds acceptable to the Company and the Trustee in an amount equal to the face amount of such missing coupon
or coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if there be furnished to them
such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to any Paying Agent any such missing coupon in respect of which such a payment shall have been made, such Holder shall
be entitled to receive the amount of such payment; provided, however, that, except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency located outside the
United States. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at any such office or agency in exchange
for a Registered Security of the same series and like tenor and terms after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or agency on the related date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such Interest Payment Date or proposed date of payment, as the case may be.
Whenever any Debt Securities
are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Debt Securities which
the Holder making the exchange is entitled to receive.
If at any time the Depositary
for the Debt Securities of a series notifies the Company that it is unwilling or unable to continue as Depositary for the Debt Securities
of such series or if at any time the Depositary for the Debt Securities of such series shall no longer be eligible under Section 303(h),
the Company shall appoint a successor Depositary with respect to the Debt Securities of such series. If a successor Depositary for the
Debt Securities of such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, the Company’s election pursuant to Section 301(9) shall no longer be effective with respect to the Debt Securities
of such series and the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive
Debt Securities of such series, will authenticate and deliver, Debt Securities of such series in definitive form in an aggregate principal
amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security
or Securities.
The Company may at any time
and in its sole discretion determine that the Debt Securities of any series issued in the form of one or more Global Securities shall
no longer be represented by such Global Security or Securities. In such event the Company will execute, and the Trustee, upon receipt
of a Company Order for the authentication and delivery of definitive Debt Securities of such series, will authenticate and deliver, Debt
Securities of such series in definitive form and in an aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such series in exchange for such Global Security or Securities.
If specified by the Company
pursuant to Section 301 with respect to a series of Debt Securities, the Depositary for such series of Debt Securities may surrender a
Global Security for such series of Debt Securities in exchange in whole or in part for Debt Securities of such series of like tenor and
terms and in definitive form on such terms as are acceptable to the Company and such Depositary. Thereupon, the Company shall execute,
and the Trustee shall authenticate and deliver, without charge to any Holder,
(a) to each Person
specified by such Depositary a new Debt Security or Securities of the same series, of like tenor and terms and of any authorized denominations
as requested by such person in aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the
Global Security; and
(b) to such Depositary
a new Global Security of like tenor and terms and in a denomination equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of Debt Securities delivered to Holders thereof.
In any exchange provided for
in any of the preceding three paragraphs, the Company will execute and the Trustee will authenticate and deliver Debt Securities (a) in
definitive registered form in authorized denominations, if the Debt Securities of such series are issuable as Registered Securities, (b)
in definitive bearer form in authorized denominations, with coupons attached, if the Debt Securities of such series are issuable as Bearer
Securities or (c) as either Registered or Bearer Securities, as shall be specified by the beneficial owner thereof, if the Debt Securities
of such series are issuable in either form; provided, however, that no definitive Bearer Security shall be delivered in exchange
for a temporary Global Security unless the Company or its agent shall have received from the person entitled to receive the definitive
Bearer Security a certificate substantially in the form set forth in Exhibit A-1 and, if applicable, A-2 hereto; and provided further
that delivery of a Bearer Security shall occur only outside the United States; and provided further that no definitive Bearer Security
will be issued if the Company has reason to know that any such certificate is false.
Upon the exchange of a Global
Security for Debt Securities in definitive form, such Global Security shall be cancelled by the Trustee. Registered Securities issued
in exchange for a Global Security pursuant to this Section shall be registered in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Registered Securities to the persons in whose names such Debt Securities are so registered. The
Trustee shall deliver Bearer Securities issued in exchange for a Global Security pursuant to this Section to the persons, and in such
authorized denominations, as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee; provided, however, that no definitive Bearer Security shall be delivered in exchange
for a temporary Global Security unless the Company or its agent shall have received from the person entitled to receive the definitive
Bearer Security a certificate substantially in the form set forth in Exhibit A-1 and, if applicable, A-2 hereto; and provided further
that delivery of a Bearer Security shall occur only outside the United States; and provided further that no definitive Bearer Security
will be issued if the Company has reason to know that any such certificate is false.
All Debt Securities issued upon
any registration of transfer or exchange of Debt Securities shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Debt Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented
or surrendered for registration of transfer or for exchange shall (if so required by the Company, the Security Registrar or the Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company, the Security Registrar and
the Trustee duly executed, by the Holder thereof or such Holder’s attorney duly authorized in writing.
No charge to any Holder shall
be made for any registration of transfer or exchange of Debt Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any transfer, registration of transfer or exchange of Debt
Securities, other than exchanges expressly provided in this Indenture to be made at the Company’s own expense or without expense
or without charge to the Holders.
The Company shall not be required
(i) to issue, register the transfer of or exchange Debt Securities of any particular series to be redeemed for a period of fifteen days
preceding the first publication of the relevant notice of redemption or, if Registered Securities are outstanding and there is no publication,
the mailing of the relevant notice of redemption of Debt Securities of such series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the transfer of or exchange any Registered Security so selected
for redemption in whole or in part, except the unredeemed portion of such Registered Security being redeemed in part, or (iii) to exchange
any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered Security of like tenor
and terms of that series, provided that such Registered Security shall be simultaneously surrendered for redemption.
Notwithstanding anything herein
to the contrary, the exchange of Bearer Securities into Registered Securities shall be subject to applicable laws and regulations in effect
at the time of exchange; neither the Company, the Trustee nor the Security Registrar shall exchange any Bearer Securities into Registered
Securities if it has received an Opinion of Counsel that as a result of such exchanges the Company would suffer adverse consequences under
the United States Federal income tax laws and regulations then in effect and the Company has delivered to the Trustee a Company Order
directing the Trustee not to make such exchanges thereafter unless and until the Trustee receives a subsequent Company Order to the contrary.
The Company shall deliver copies of such Company Orders to the Security Registrar.
Section 306. Mutilated, Destroyed,
Lost and Stolen Debt Securities.
If (i) any mutilated Debt Security
or a Bearer Security with a mutilated coupon appertaining to it is surrendered to a Paying Agent outside the United States designated
by the Company, or, in the case of any Registered Security, to the Trustee, or (ii) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Debt Security or coupon, and there is delivered to the Company and the Trustee such
security or indemnity as may be required by them to save each of them harmless, then, in the absence of notice to the Company and the
Trustee that such Debt Security or coupon has been acquired by a bona fide purchaser, the Company shall execute and upon its written request
the Trustee shall authenticate and deliver, in exchange for any such mutilated Debt Security or Bearer Security with a mutilated coupon
appertaining to it or to which a destroyed, lost or stolen coupon appertains (with all related coupons not destroyed, lost or stolen)
or in lieu of any such destroyed, lost or stolen Debt Security, a new Debt Security of like tenor and terms and principal amount, bearing
a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to such destroyed, lost or
stolen Debt Security or to the Debt Security to which such destroyed, lost or stolen coupon appertains; provided, however, that
any such new Bearer Security will be delivered only in compliance with the conditions set forth in Section 305.
In case any such mutilated,
destroyed, lost or stolen Debt Security or coupon has become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Debt Security, pay such Debt Security or coupon; provided, however, that payment of principal of (and
premium, if any) and any interest on Bearer Securities shall, except as otherwise provided in Section 1002, be payable only at an office
or agency located outside the United States; and provided, further, that, with respect to any such coupons, interest represented
thereby (but not any additional amounts payable as provided in Section 1004), shall be payable only upon presentation and surrender of
the coupons appertaining thereto.
Upon the issuance of any new
Debt Security or coupons under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee and printing expenses)
connected therewith.
Every new Debt Security of any
series, with its coupons, if any, issued pursuant to this Section in lieu of any destroyed, lost or stolen Debt Security, or in exchange
for a Bearer Security to which a destroyed, lost or stolen coupon appertains, shall constitute an original additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Debt Security and its coupons, if any, or the destroyed, lost or stolen coupon
shall be at any time enforceable by anyone, and any such new Debt Security and coupons, if any, shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Debt Securities of that series and their coupons, if any, duly issued
hereunder.
The provisions of this Section
are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Debt Securities or coupons.
Section 307. Payment
of Interest; Interest Rights Preserved.
Interest on any Registered 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 Registered Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for
such interest. In case a Bearer Security of any series is surrendered in exchange for a Registered Security of such series after the close
of business (at an office or agency in a Place of Payment for such series) on any Regular Record Date and before the opening of business
(at such office or agency) on the next succeeding Interest Payment Date, such Bearer Security shall be surrendered without the coupon
relating to such Interest Payment Date and interest will not be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the Holder of such coupon when due in accordance with the provisions
of this Indenture. At the option of the Company, payment of interest on any Registered Security may be made by check in the currency designated
for such payment pursuant to the terms of such Registered Security mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register or by wire transfer to an account in such currency designated by such Person in writing not later
than ten days prior to the date of such payment.
Any interest on any Registered
Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called
“Defaulted Interest”) shall forthwith cease to be payable to the registered Holder on the relevant Regular Record Date by
virtue of his having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided
in Clause (1) or (2) below:
(1) The Company may
elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to
be paid on each Registered Security of such series and the date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money and/or, to the extent such Debt Securities are denominated and payable in Dollars only, Eligible Instruments
the payments of principal and interest on which when due (and without reinvestment and providing no tax liability will be imposed upon
the Trustee or the Holder of such Registered Securities) will provide money in such amounts as will (together with any money irrevocably
deposited in trust with the Trustee, without investment) be equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money
and/or Eligible Instruments when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in
this Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the written notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date.
Unless the Trustee is acting as the Security Registrar, promptly after such Special Record Date, the Company shall furnish the Trustee
with a list, or shall make arrangements satisfactory to the Trustee with respect thereto, of the names and addresses of, and principal
amounts of Registered Securities of such series held by, the Holders appearing on the Security Register at the close of business on such
Special Record Date. In the name and at the expense of the Company, the Trustee shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Registered Securities of such
series at his address as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall
be paid to the Persons in whose names the Registered Securities of such series (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (2). In case a Bearer
Security of any series is surrendered at the office or agency in a Place of Payment for such series in exchange for a Registered Security
of such series after the close of business at such office or agency on any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the
coupon relating to such proposed date of payment and Defaulted Interest will not be payable on such proposed date of payment in respect
of the Registered Security issued in exchange for such Bearer Security, but will be payable only to the Holder of such coupon when due
in accordance with the provisions of this Indenture.
(2) The Company may
make payment of any Defaulted Interest on the Registered Securities of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Registered Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions
of this Section, each Debt Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any
other Debt Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Debt Security.
Subject to the limitations set
forth in Section 1002, the Holder of any coupon appertaining to a Bearer Security shall be entitled to receive the interest payable on
such coupon upon presentation and surrender of such coupon on or after the Interest Payment Date of such coupon at an office or agency
maintained for such purpose pursuant to Section 1002.
Section 308. Persons
Deemed Owners.
Prior to due presentment of
a Registered Security for registration of transfer, the Company, the Trustee and any agent of the Company or of the Trustee may treat
the Person in whose name such Registered Security is registered as the owner of such Registered Security for the purpose of receiving
payment of principal of (and premium, if any) and (subject to Section 307) interest on such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.
The Company, the Trustee and
any agent of the Company or the Trustee may treat the bearer of any Bearer Security and the bearer of any coupon as the absolute owner
of such Bearer Security or coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Bearer Security or coupon be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee,
any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments
made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
Section 309. Cancellation.
Unless otherwise provided with
respect to a series of Debt Securities, all Debt Securities and coupons surrendered for payment, redemption, repayment, transfer, exchange
or credit against any sinking fund payment pursuant to this Indenture, shall, if surrendered to the Company or any agent of the Company,
be delivered to the Trustee and shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation
any Debt Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and
all Debt Securities so delivered shall be promptly cancelled by the Trustee. No Debt Securities shall be authenticated in lieu of or in
exchange for any Debt Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled
Debt Securities and coupons held by the Trustee shall be destroyed and certification of their destruction delivered to the Company unless
by a Company Order the Company shall direct that the cancelled Debt Securities or coupons be returned to it.
Section 310. Computation
of Interest.
Except as otherwise specified
as contemplated by Section 301 for Debt Securities of any series, interest on the Debt Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
Section 311. Certification
by a Person Entitled to Delivery of a Bearer Security.
Whenever any provision of this
Indenture or a Debt Security contemplates that certification be given by a Person entitled to delivery of a Bearer Security, such certification
shall be provided substantially in the form of Exhibit A-1 and, if applicable, A-2 hereto, with only such changes as shall be approved
by the Company and consented to by the Trustee whose consent shall not unreasonably be withheld.
312. Judgments
The Company may provide, pursuant
to Section 301, for the Debt Securities of any series that, to the fullest extent possible under applicable law and except as may otherwise
be specified as contemplated in Section 301, (a) the obligation, if any, of the Company to pay the principal of (and premium, if any)
and interest on the Debt Securities of any series and any related coupons in a Foreign Currency, composite currency or Dollars (the “Designated
Currency”) as may be specified pursuant to Section 301 is of the essence and that judgments in respect of such Debt Securities shall
be given in the Designated Currency; (b) the obligation of the Company to make payments in the Designated Currency of the principal of
(and premium, if any) and interest on such Debt Securities and any related coupons shall, notwithstanding any payment in any other currency
(whether pursuant to a judgment or otherwise), be discharged only to the extent of the amount in the Designated Currency that the Holder
receiving such payment may, in accordance with normal banking procedures, purchase with the sum paid in such other currency (after any
premium and cost of exchange) in the country of issue of the Designated Currency in the case of Foreign Currency or Dollars or in the
international banking community in the case of a composite currency on the Business Day immediately following the day on which such Holder
receives such payment; (c) if the amount in the Designated Currency that may be so purchased for any reason falls short of the amount
originally due, the Company shall pay such additional amounts as may be necessary to compensate for such shortfall; and (d) any obligation
of the Company not discharged by such payment shall be due as a separate and independent obligation and, until discharged as provided
herein, shall continue in full force and effect.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction
and Discharge of Indenture.
This Indenture shall upon Company
Request cease to be of further effect, including the provisions of Article Sixteen hereof (except as to any surviving rights of registration
of transfer or exchange of Debt Securities herein expressly provided for and rights to receive payments of principal and interest thereon
and any right to receive additional amounts, as provided in Section 1004) and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture when
(1) either
(A) all Debt Securities
theretofore authenticated and delivered and all coupons appertaining thereto (other than (i) coupons appertaining to Bearer Securities
surrendered in exchange for Registered Securities and maturing after such exchange, surrender of which is not required or has been waived
as provided in Section 305, (ii) Debt Securities and coupons which have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 306, (iii) coupons appertaining to Bearer Securities called for redemption or surrendered for repayment and
maturing after the relevant Redemption Date or Repayment Date, as appropriate, surrender of which has been waived as provided in Section
1106 or 1303 and (iv) Debt Securities and coupons for whose payment money and/or Eligible Instruments have theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided
in Section 1003) have been delivered to the Trustee cancelled or for cancellation; or
(B) all such Debt
Securities not theretofore delivered to the Trustee for cancellation
(i) have become
due and payable, or
(ii) will become
due and payable at their Stated Maturity within one year, or
(iii) are to be
called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company, and the Company, in the case of (B)(i), (B)(ii) or (B)(iii) above, has irrevocably deposited
or caused to be deposited with the Trustee as trust funds in trust for the purpose money and/or, to the extent such Debt Securities are
denominated and payable in Dollars only, Eligible Instruments the payments of principal and interest on which when due (and without reinvestment
and providing no tax liability will be imposed upon the Trustee or the Holders of Debt Securities) will provide money in such amounts
as will (together with any money irrevocably deposited in trust with the Trustee, without investment) be sufficient to pay and discharge
the entire indebtedness on such Debt Securities and coupons of such series for principal (and premium, if any) and interest, and any mandatory
sinking fund, repayment or analogous payments thereon, on the scheduled due dates therefor to the date of such deposit (in the case of
Debt Securities and coupons which have become due and payable) or to the Stated Maturity or Redemption Date, if any, and all Repayment
Dates (in the case of Debt Securities repayable at the option of the Holders thereof); provided, however, that in the event a petition
for relief under any applicable Federal or state bankruptcy, insolvency, reorganization or other similar law is filed with respect to
the Company within 91 days after the deposit, the obligations of the Company under the Indenture with respect to the Debt Securities of
such series shall not be deemed terminated or discharged, and in such event the Trustee shall be required to return the deposited money
and Eligible Instruments then held by the Trustee to the Company;
(2) the Company has
paid or caused to be paid all other sums payable hereunder by the Company; and
(3) the Company has
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge
of this Indenture, the obligations of the Company to the Trustee under Section 607 and, if money or Eligible Instruments shall have been
deposited with the Trustee pursuant to Subclause (B) of Clause (1) of this Section, the obligations of the Trustee under Section 402 and
the last paragraph of Section 1003 shall survive such satisfaction and discharge.
Section 402. Application
of Trust Money and Eligible Instruments.
(a) Subject to the provisions
of the last paragraph of Section 1003, all money and Eligible Instruments deposited with the Trustee pursuant to Section 401, 403 or 1501
shall be held in trust and such money and the principal and interest received on such Eligible Instruments shall be applied by it, in
accordance with the provisions of the Debt Securities, any coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal (and premium, if any) and interest for whose payment such money or Eligible Instruments have been deposited with the Trustee.
(b) The Trustee shall deliver
or pay to the Company from time to time upon Company Request any Eligible Instruments or money held by it as provided in Section 403 or
1501 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are then in excess of the amount thereof which then would have been required to be deposited for the purpose
for which such Eligible Instruments or money were deposited or received.
(c) The Trustee shall deliver
to the Company from time to time upon Company Request any Eligible Instruments held by it as provided in Section 403 or 1501, provided
that the Company in substitution therefor simultaneously delivers to the Trustee, money or other Eligible Instruments which, in the opinion
of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee,
would then be sufficient to satisfy the Company’s payment obligations in respect of the Debt Securities in the manner contemplated
by Section 403 or 1501.
Section 403. Satisfaction,
Discharge and Defeasance of Debt Securities of any Series.
If this Section 403 is specified,
as contemplated by Section 301, to be applicable to Debt Securities of any series, then, notwithstanding Section 401, (i) the Company
shall be deemed to have paid and discharged the entire indebtedness on all the Outstanding Debt Securities of any such series and related
coupons; (ii) the provisions of this Indenture as it relates to such Outstanding Debt Securities and related coupons shall no longer be
in effect, including the provisions of Article Sixteen hereof (except as to the rights of Holders of Debt Securities to receive, from
the trust fund described in subparagraph (1) below, payment of (x) the principal of (and premium, if any) and any installment of principal
of (and premium, if any) or interest on such Debt Securities and related coupons on the Stated Maturity of such principal (and premium,
if any) or installment of principal (and premium, if any) or interest or (y) any mandatory sinking fund, repayment or analogous payments
applicable to the Debt Securities of that series on that day on which such payments are due and payable in accordance with the terms of
this Indenture and of such Debt Securities, the Company’s obligations with respect to such Debt Securities under Sections 304, 305,
306, 1002, 1003 and 1004 and the rights, powers, trusts, duties and immunities of the Trustee hereunder, including those under Section
607 hereof); and (iii) the Trustee, at the expense of the Company, shall, upon Company Order, execute proper instruments acknowledging
satisfaction and discharge of such indebtedness, when
(1) either
(A) with respect to
all Outstanding Debt Securities of such series and related coupons, with reference to this Section 403, the Company has deposited or caused
to be deposited with the Trustee (or another trustee satisfying the requirements of Section 609 who shall agree to comply with the provisions
of this Section 403 applicable to it) irrevocably, as trust funds in trust, money and/or, to the extent such Debt Securities are denominated
and payable in Dollars only, Eligible Instruments the payments of principal and interest on which when due (and without reinvestment and
providing no tax liability will be imposed upon the Trustee or the Holders of such Debt Securities) will provide money in such amounts
as will (together with any money irrevocably deposited in trust with the Trustee, without investment) be sufficient to pay and discharge
(i) the principal of (and premium, if any) and interest on the Outstanding Debt Securities of that series and related coupons on the Stated
Maturity of such principal or interest or, if such series may be redeemed by the Company prior to the Stated Maturity thereof, and the
Company shall have given irrevocable instructions to the Trustee to effect such redemption, at the date fixed for such redemption pursuant
to Article Eleven, and (ii) any mandatory sinking fund payments or analogous payments applicable to Debt Securities of such series on
the date on which such payments are due and payable in accordance with the terms of this Indenture and of such Debt Securities; or
(B) the Company has
properly fulfilled such other means of satisfaction and discharge as is specified, as contemplated by Section 301, to be applicable to
the Debt Securities of such series;
(2) the Company
has paid or caused to be paid all sums payable with respect to the Outstanding Debt Securities of such series and related coupons;
(3) such deposit
will not result in a breach of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company
is a party or by which it is bound;
(4) no Event of
Default or event which, with the giving of notice or lapse of time, or both, would become an Event of Default pursuant to Section 501(1),
(2), (3), (5) or (6) with respect to the Debt Securities of such series shall have occurred and be continuing on the date of such deposit
and no Event of Default under Section 501(5) or Section 501(6) or event which, with the giving of notice or lapse of time, or both, would
become an Event of Default under Section 501(5) or Section 501(6) shall have occurred and be continuing on the 91st day after
such date; provided, however, that should that condition fail to be satisfied on or before such 91st day, the
Trustee shall promptly, upon satisfactory receipt of evidence of such failure, return such deposit to the Company;
(5) the Company
has delivered to the Trustee an Opinion of Counsel to the effect that (a) the Company has received from, or there has been published by,
the Internal Revenue Service a ruling, or (b) since the date of this Indenture there has been a change in applicable Federal income tax
law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of Debt Securities and
related coupons of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit, defeasance
and discharge and will be subject to Federal income tax on the same amount and in the same manner and at the same times as would have
been the case if such deposit, defeasance and discharge had not occurred;
(6) if the Debt
Securities of that series are then listed on any domestic or foreign securities exchange, the Company shall have delivered to the Trustee
an Opinion of Counsel to the effect that such deposit, defeasance and discharge will not cause such Debt Securities to be delisted;
(7) such deposit
shall have been effected in compliance with any additional terms, conditions or limitations which may be imposed on the Company in connection
therewith pursuant to Section 301; and
(8) the Company
has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of the entire indebtedness of all Outstanding Debt Securities and related coupons
have been complied with.
Any deposits with the Trustee
referred to in Section 403(1)(A) above shall be irrevocable and shall be made under the terms of an escrow or trust agreement in form
and substance satisfactory to the Trustee. If any Outstanding Debt Securities of such series are to be redeemed prior to their Stated
Maturity, whether pursuant to any optional redemption provisions or in accordance with any mandatory sinking fund requirement, the applicable
escrow or trust agreement shall provide therefor and the Company shall make such arrangements as are satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Upon the satisfaction of the
conditions set forth in this Section 403 with respect to all the Outstanding Debt Securities of any series, the terms and conditions of
such series, including the terms and conditions with respect thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided that the Company shall not be discharged from any payment obligations in respect of Debt Securities
of such series which are deemed not to be Outstanding under clause (iii) of the definition thereof if such obligations continue to be
valid obligations of the Company under applicable law.
Notwithstanding the cessation,
termination and discharge of all obligations, covenants and agreements (except as provided above in this Section 403) of the Company under
this Indenture with respect to any series of Debt Securities, the obligations of the Company to the Trustee under Section 607, and the
obligations of the Trustee under Section 402 and the last paragraph of Section 1003, shall survive with respect to such series of Debt
Securities.
ARTICLE FIVE
Remedies
Section 501. Events
of Default.
“Event of Default”,
wherever used herein with respect to Debt Securities of any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law, pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) default in the
payment of any interest upon any Debt Security of such series or a related coupon, if any, when it becomes due and payable, and continuance
of such default for a period of 30 days; or
(2) default in the
payment of the principal of (or premium, if any, on) any Debt Security of such series at its Maturity; or
(3) default in the
deposit of any sinking fund payment, when and as due by the terms of a Debt Security of such series; or
(4) default in the
performance, or breach, of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture
solely for the benefit of Debt Securities of a series other than such series), and continuance of such default or breach for a period
of 90 days after there has been given by registered or certified mail, to the Company by the Trustee, or to the Company and the Trustee
by the Holders of at least 25% in principal amount of the Outstanding Debt Securities of such series, a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
(5) the entry by
a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company in an involuntary case or proceeding
under any applicable Federal or state bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company under any applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or ordering the winding up
or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and
in effect for a period of 60 consecutive days; or
(6) the commencement
by the Company of a voluntary case or proceeding under any applicable Federal or state bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree
or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State law, or the consent by
it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of any substantial part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking
of corporate action by the Company in furtherance of any such action; or
(7) any other Event
of Default, if any, provided with respect to Debt Securities of such series specified as contemplated by Section 301.
Section 502. Acceleration
of Maturity; Rescission and Annulment.
If an Event of Default with
respect to Debt Securities of any series at the time Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of Outstanding Debt Securities of such series may declare the principal amount (or,
if the Debt Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be specified
in the terms of such series) of and all accrued but unpaid interest on all the Debt Securities of such series to be due and payable immediately,
by a notice in writing to the Company (and to the Trustee if given by such Holders), and upon any such declaration such principal amount
(or specified amount) shall become immediately due and payable. Upon payment of such amount, all obligations of the Company in respect
of the payment of principal of the Debt Securities of such series shall terminate.
At any time after such a declaration
of acceleration with respect to Debt Securities of any series has been made and before a judgment or decree for payment of the money due
has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding
Debt Securities of such series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences
if
(1) the Company
has paid or deposited with the Trustee a sum sufficient to pay
(A) all overdue installments
of interest on all Debt Securities of such series and any related coupons,
(B) the principal
of (and premium, if any, on) any Debt Securities of such series which have become due otherwise than by such declaration of acceleration
and interest thereon at the rate or rates prescribed therefor in such Debt Securities,
(C) to the extent
that payment of such interest is lawful, interest upon overdue installments of interest on each Debt Security and any related coupons
at the rate or rates prescribed therefor in such Debt Securities, and
(D) all sums paid
or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel;
and
(2) all Events of
Default with respect to Debt Securities of such series, other than the non-payment of the principal of Debt Securities of such series
which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent
default or impair any right consequent thereon.
Section 503. Collection
of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made
in the payment of any installment of interest on any Debt Security or any related coupon when such interest becomes due and payable and
such default continues for a period of 30 days, or
(2) default is made
in the payment of the principal of (or premium, if any, on) any Debt Security at the Maturity thereof,
the Company will, upon demand of the Trustee,
pay to it, for the benefit of the Holders of such Debt Securities and any related coupons, the amount then due and payable on such Debt
Securities and coupons for principal (and premium, if any) and interest and, to the extent that payment of such interest shall be legally
enforceable, interest upon the overdue principal (and premium, if any) and, upon overdue installments of interest, at the rate or rates
prescribed therefor in such Debt Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay
such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding
for the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Debt Securities and coupons and collect the moneys adjudged or decreed to be payable
in the manner provided by law out of the property of the Company or any other obligor upon such Debt Securities and coupons, wherever
situated.
If an Event of Default with
respect to Debt Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Debt Securities of such series and any related coupons by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant
or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 504. Trustee
May File Proofs of Claim.
In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceedings,
or any voluntary or involuntary case under the Federal bankruptcy laws as now or hereafter constituted, relative to the Company or any
other obligor upon the Debt Securities of a particular series or any related coupons or the property of the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal of such Debt Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment
of overdue principal or interest) shall be entitled and empowered, by intervention in such proceedings or otherwise,
(1) to file and
prove a claim for the whole amount of principal (and premium, if any) and interest owing and unpaid in respect of the Debt Securities
of such series and any related coupons and to file such other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding, and
(2) to collect and
receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any receiver, assignee,
trustee, custodian, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Holder to make
such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due 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 607.
Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Debt Securities or any coupons or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
Section 505. Trustee
May Enforce Claims without Possession of Debt Securities or Coupons.
All rights of action and claims
under this Indenture or the Debt Securities or coupons may be prosecuted and enforced by the Trustee without the possession of any of
the Debt Securities or coupons or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name, as trustee of an express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable
benefit of the Holders of the Debt Securities and coupons in respect of which such judgment has been recovered.
Section 506. Application
of Money Collected.
Any money collected by the Trustee
pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution
of such money on account of principal (and premium, if any) or interest, upon presentation of the Debt Securities or any coupons, or both,
as the case may be, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment
of all amounts due the Trustee under Section 607;
SECOND: To the payment of amounts
then due and unpaid to the holders of Senior Debt, to the extent required by Article Sixteen;
THIRD: To the payment
of the amounts then due and unpaid for principal of (and premium, if any) and interest on the Debt Securities and any coupons, 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 Debt Securities and any coupons for principal (and premium, if any) and interest, respectively. The Holders
of each series of Debt Securities denominated in Euro, any other composite currency or a Foreign Currency and any matured coupons relating
thereto shall be entitled to receive a ratable portion of the amount determined by the Exchange Rate Agent by converting the principal
amount Outstanding of such series of Debt Securities and matured but unpaid interest on such series of Debt Securities in the currency
in which such series of Debt Securities is denominated into Dollars at the Exchange Rate as of the date of declaration of acceleration
of the Maturity of the Debt Securities; and
FOURTH: The balance,
if any, to the Company.
Section 507. Limitation
on Suits.
No Holder of any Debt Securities
of any series or any related coupons shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder
has previously given written notice to the Trustee of a continuing Event of Default with respect to the Debt Securities of such series;
(2) the Holders
of not less than 25% in principal amount of the Outstanding Debt Securities of such series shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder
or Holders have offered to the Trustee reasonable indemnity satisfactory to it against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee
for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction
inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Debt Securities of such series;
it being understood and intended that no one or
more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other such Holders, or to obtain or to seek to obtain priority or preference over any other of
such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit
of all of such Holders.
Section 508. Unconditional
Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other provision
in this Indenture, the Holder of any Debt Security or coupon shall have the right which is absolute and unconditional to receive payment
of the principal of (and premium, if any) and (subject to Section 307) interest on such Debt Security or payment of such coupon on the
respective Stated Maturity or Maturities expressed in such Debt Security or coupon (or, in the case of redemption or repayment, on the
Redemption Date or the Repayment Date, as the case may be) and to institute suit for the enforcement of any such payment, and such right
shall not be impaired without the consent of such Holder, subject, however, to the provisions of Article Sixteen.
Section 509. Restoration
of Rights and Remedies.
If the Trustee or any Holder
has instituted any proceedings to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned
for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case the Company, the Trustee
and the Holders shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 510. Rights
and Remedies Cumulative.
Except as otherwise provided
in Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right
or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 511. Delay
or Omission Not Waiver.
No delay or omission of the
Trustee or of any Holder of any Debt Security or coupon to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given
by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient,
by the Trustee or by the Holders, as the case may be.
Section 512. Control
by Holders of Debt Securities.
The Holders of a majority in
principal amount of the Outstanding Debt Securities of any series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Debt
Securities of such series, provided, that
(1) such direction
shall not be in conflict with any rule of law or with this Indenture;
(2) subject to the
provisions of Section 601, the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall,
by a Responsible Officer or Responsible Officers of the Trustee, determine that the proceedings so directed would be unjustly prejudicial
to the Holders of Debt Securities of such series not joining in any such direction; and
(3) the Trustee
may take any other action deemed necessary by the Trustee which is not inconsistent with such direction.
Section 513. Waiver
of Past Defaults.
The Holders of not less than
a majority in principal amount of the Outstanding Debt Securities of any series may on behalf of the Holders of all the Debt Securities
of any such series and any related coupons waive any past default hereunder with respect to such series and its consequences, except a
default
(1) in the payment
of the principal of (or premium, if any) or interest on any Debt Security of such series, or
(2) in respect of
a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding
Debt Security of such series or coupons affected.
Upon any such waiver, such default
shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture;
but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 514. Undertaking
for Costs.
All parties to this Indenture
agree, and each Holder of any Debt Security or coupon by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having a due regard to the merits and good faith of the claims or defenses made by
such party litigant, but the provisions of this Section shall not apply to any suit instituted by the Company or the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Debt Securities
of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or
interest on any Debt Security or the payment of any coupons on or after the respective Stated Maturity or Maturities expressed in such
Debt Security or coupon (or, in the case of redemption or repayment, on or after the Redemption Date or Repayment Date, as the case may
be).
Section 515. Waiver
of Stay or Extension Laws.
The Company covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension law whenever enacted, now or at any time hereafter in force, which may affect the covenants or
the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefits 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.
ARTICLE SIX
The Trustee
Section 601. Certain
Duties and Responsibilities.
(a) Except during the continuance
of an Event of Default,
(i) the Trustee
undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(ii) in the absence
of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case
of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(b) In case 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 circumstances in the conduct of his or
her own affairs.
(c) No provision of this Indenture
shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that
(i) this subsection
shall not be construed to limit the effect of subsection (a) of this Section 601;
(ii) the Trustee
shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts;
(iii) the Trustee
shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the
Holders of a majority in principal amount of the Outstanding Debt Securities of any series, determined as provided in Sections 101, 104
and 512, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture with respect to the Debt Securities of such series; and
(iv) no provision
of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or powers.
(d) Whether or not
therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection
to the Trustee shall be subject to the provisions of this Section.
Section 602. Notice
of Default.
If a default occurs hereunder
with respect to Debt Securities of any series the Trustee shall transmit by mail to all Holders of Debt Securities of such series notice
of such default as and to the extent provided by the Trust Indenture Act; provided, however, that in the case of any default of
the character specified in Section 501(4) with respect to Debt Securities of such series no such notice to Holders shall be given until
at least 30 days after the occurrence thereof; and provided further, that, except in the case of a default in the payment of principal
of (or premium, if any) or interest on any Debt Security of such series or related coupons or in the payment of any sinking fund installment
with respect to Debt Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board
of directors, the executive committee or a trust committee of directors and/or a Responsible Officer of the Trustee in good faith determines
that the withholding of such notice is in the interest of the Holders of the Debt Securities of such series. For the purpose of this Section,
the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default with
respect to Debt Securities of such series.
Section 603. Certain
Rights of Trustee.
Except as otherwise provided
in Section 601:
(a) the Trustee may conclusively
rely and shall be fully protected in acting or refraining from acting upon any signature, resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other paper or document (whether in its
original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction
of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board
of Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration
of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers’ Certificate;
(d) the Trustee may consult
with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under
no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders
of Debt Securities of such series or any related coupons pursuant to this Indenture, unless such Holders shall have offered to the Trustee
security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(f) the Trustee shall not be
bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, coupon, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney, other than any such books or records containing information as to the affairs of the
customers of the Company or any of its subsidiaries; provided that the Trustee may examine such books and records relating to customers
to the extent that such books and records contain information as to any payments made to such customers in their capacity as Holders of
Debt Securities; and provided further that the Trustee shall incur no liability or additional liability of any kind by reason of
such inquiry or investigation; and
(g) the Trustee may execute
any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
no Exchange Rate Agent, Global Exchange Agent, Depositary or Paying Agent shall be deemed an agent of the Trustee and the Trustee shall
not be responsible for any act or omission by any of them.
Section 604. Not Responsible
for Recitals or Issuance of Debt Securities.
The recitals contained herein
and in the Debt Securities, except the Trustee’s certificates of authentication, and in any coupons, and the information in any
registration statement, including all attachments thereto, except information provided by the Trustee therein, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Debt Securities of any series or any coupons. The Trustee shall not be accountable for the
use or application by the Company of any Debt Securities or the proceeds thereof. The Trustee shall not be responsible for and makes no
representations as to the Company’s ability or authority to issue Bearer Securities or the lawfulness thereof.
Section 605. May Hold
Debt Securities or Coupons.
The Trustee, any Paying Agent,
the Security Registrar or any other agent of the Company or the Trustee, in its individual or any other capacity, may become the owner
or pledgee of Debt Securities and coupons, and, subject to Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Security Registrar or such agent.
Section 606. Money
Held in Trust.
Money held by the Trustee or
any Paying Agent in trust hereunder need not be segregated from other funds except to the extent required by law. Neither the Trustee
nor any Paying Agent shall be under any liability for interest on any money received by it hereunder except as otherwise agreed with the
Company.
Section 607. Compensation
and Reimbursement.
The Company agrees
(1) to pay to the
Trustee from time to time such compensation for all services rendered by it hereunder which shall have been separately agreed to from
time to time in writing by the Company and the Trustee (which compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise
expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred
or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or
willful misconduct; and
(3) to fully indemnify
the Trustee for, and to hold it harmless against, any and all claims, losses, liabilities, damages or expenses (including taxes other
than taxes based upon the income of the Trustee) incurred without negligence or willful misconduct on its part, arising out of or in connection
with the acceptance or administration of this trust or performance of its duties hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.
As security for the performance
of the obligations of the Company under this Section the Trustee shall have a claim prior to the Debt Securities and any coupons upon
all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (and premium,
if any) or interest on particular Debt Securities or any coupons. The claims of the Trustee under this Section shall not be subject to
the provisions of Article Sixteen.
Section 608. Disqualification;
Conflicting Interests.
If the Trustee has or shall
acquire any conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting interest with respect to Debt Securities of any series by
virtue of being a trustee under this Indenture with respect to any particular series of Debt Securities.
Section 609. Corporate
Trustee Required; Eligibility.
There shall at all times be
a Trustee hereunder which shall be a corporation that is eligible pursuant to the Trust Indenture Act to act as such and organized and
doing business under the laws of the United States, any State thereof or the District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least $5,000,000, and subject to supervision or examination by Federal
or State authority; provided, however, that if Section 310(a) of the Trust Indenture Act or the rules and regulations of the Commission
under the Trust Indenture Act at any time permit a corporation organized and doing business under the laws of any other jurisdiction to
serve as trustee of an indenture qualified under the Trust Indenture Act, this Section 609 shall be automatically amended to permit a
corporation organized and doing business under the laws of any such other jurisdiction to serve as Trustee hereunder. If such corporation
publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign promptly in the manner and with the effect hereinafter specified in this
Article.
Section 610. Resignation
and Removal; Appointment of Successor.
(a) No resignation or removal
of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment
by the successor Trustee under Section 611.
(b) The Trustee may resign at
any time with respect to the Debt Securities of one or more series by giving written notice thereof to the Company. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Debt Securities of such series.
(c) The Trustee may be removed
at any time with respect to the Debt Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding
Debt Securities of such series, delivered to the Trustee and to the Company. If an instrument of acceptance by a successor Trustee shall
not have been delivered to the Trustee within 30 days of receipt of such Act specifying removal, the removed Trustee may petition at the
expense of the Company any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Debt Securities
of such series.
(d) If at any time:
(1) the Trustee
shall fail to comply with Section 608 with respect to the Debt Securities of any series after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Debt Security of such series for at least six months, or
(2) the Trustee
shall cease to be eligible under Section 609 with respect to any series of Debt Securities and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) the Trustee
shall become incapable of acting with respect to any series of Debt Securities or a decree or order for relief by a court having jurisdiction
in the premises shall have been entered in respect of the Trustee in an involuntary case under the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal or State bankruptcy, insolvency or similar law; or a decree or order by a court
having jurisdiction in the premises shall have been entered for the appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator or other similar official of the Trustee or of its property or affairs, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation, winding up or liquidation, or
(4) the Trustee
shall commence a voluntary case under the Federal bankruptcy laws, as now or hereafter constituted, or any other applicable Federal or
State bankruptcy, insolvency or similar law or shall consent to the appointment of or taking possession by a receiver, custodian, liquidator,
assignee, trustee, sequestrator or other similar official of the Trustee or its property or affairs, or shall make an assignment for the
benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due, or shall take corporate action
in furtherance of any such action,
then, in any such case, (i) the Company by a Board
Resolution may remove the Trustee with respect to such series or (ii) subject to Section 514, any Holder who has been a bona fide Holder
of a Debt Security of any series for at least six months may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee for the Debt Securities of such series and the appointment of a successor Trustee.
In addition, the Company may remove the Trustee if the Company shall determine by a Board Resolution that the services provided by the
Trustee hereunder may be obtained at a substantially lower cost to the Company.
(e) If the Trustee shall resign,
be removed or become incapable of acting with respect to any series of Debt Securities, or if a vacancy shall occur in the office of Trustee
for any cause, with respect to the Debt Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Debt Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Debt Securities of one or more or all of such series and that at any time there shall be
only one Trustee with respect to the Debt Securities of any particular series) and shall comply with the applicable requirements of Section
611. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Debt Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding
Debt Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment, become the successor Trustee with respect to the Debt Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Debt Securities of any series shall
have been so appointed by the Company or the Holders and accepted appointment in the manner hereinafter provided, any Holder who has been
a bona fide Holder of a Debt Security of such series for at least six months may, subject to Section 514, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the
Debt Securities of such series.
(f) The Company shall give notice
of each resignation and each removal of the Trustee with respect to the Debt Securities of any series and each appointment of a successor
Trustee with respect to the Debt Securities of any series by mailing written notice of such event by first-class mail, postage prepaid,
to the Holders of Registered Securities, if any, of such series as their names and addresses appear in the Security Register and, if Debt
Securities of such series are issuable as Bearer Securities, by publishing notice of such event once in an Authorized Newspaper in each
Place of Payment located outside the United States. Each notice shall include the name of the successor Trustee with respect to the Debt
Securities of such series and the address of its Corporate Trust Office.
Section 611. Acceptance
of Appointment by Successor.
(a) In the case of an appointment
hereunder of a successor Trustee with respect to all Debt Securities, every such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee; but, on request of the Company or the successor Trustee, such
retiring Trustee shall, upon payment of its charges due under Section 607 hereof, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee, and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In the case of the appointment
hereunder of a successor Trustee with respect to the Debt Securities of one or more (but not all) series, the Company, the retiring Trustee
upon payment of its charges and each successor Trustee with respect to the Debt Securities of one or more series shall execute and deliver
an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions
as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Debt Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Debt Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee,
and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture,
the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Debt Securities of that or those series to which the appointment of such successor Trustee relates; but, on the request
of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder with respect to the Debt Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such
successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor
Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall
accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
Section 612. Merger,
Conversion, Consolidation or Succession to Business.
Any corporation into which the
Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under
this Article, without the executing or filing of any paper or any further act on the part of any of the parties hereto. In case any Debt
Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion, consolidation
or sale to such authenticating Trustee may adopt such authentication and deliver the Debt Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Debt Securities. In case any Debt Securities shall not have been authenticated
by such predecessor Trustee, any such successor Trustee may authenticate and deliver such Debt Securities, in either its own name or that
of its predecessor Trustee, with the full force and effect which this Indenture provides for the certificate of authentication of the
Trustee.
Section 613. Preferential
Collection of Claims Against Company.
If and when the Trustee shall
be or shall become a creditor, directly or indirectly, secured or unsecured, of the Company (or any other obligor upon the Debt Securities),
the Trustee shall be subject to the provisions of the Trust Indenture Act regarding collection of claims against the Company (or any such
other obligor).
Section 614. Authenticating
Agent.
The Trustee shall upon Company
request appoint one or more authenticating agents with respect to one or more series of Debt Securities which shall be authorized on behalf
of the Trustee in authenticating Debt Securities of such series in connection with the issue, delivery, registration of transfer, exchange,
partial redemption or repayment of such Debt Securities. Wherever reference is made in this Indenture to the authentication of Debt Securities
by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication on behalf
of the Trustee by an authenticating agent and a certificate of authentication executed on behalf of the Trustee by an authenticating agent.
Each authenticating agent must be acceptable to the Company and must be a corporation organized and doing business under the laws of the
United States or of any State, having a combined capital and surplus of at least $1,000,000, authorized under such laws to do a trust
business and subject to supervision or examination by Federal or State authorities or the equivalent foreign authority in the case of
an authenticating agent who is not organized and doing business under the laws of the United States or of any State thereof or the District
of Columbia.
Any corporation succeeding to
the corporate agency business of an authenticating agent shall continue to be an authenticating agent without the execution or filing
of any paper or any further act on the part of the Trustee or such authenticating agent.
An authenticating agent may
at any time resign with respect to one or more series of Debt Securities by giving written notice of resignation to the Trustee and to
the Company. The Trustee may at any time terminate the agency of any authenticating agent with respect to one or more series of Debt Securities
by giving written notice of termination to such authenticating agent and to the Company. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time an authenticating agent shall cease to be eligible in accordance with the provisions of
this Section, the Trustee promptly may appoint a successor authenticating agent. Any successor authenticating agent upon acceptance of
its appointment hereunder shall become vested with all rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an authenticating agent herein. No successor authenticating agent shall be appointed unless eligible under the provisions
of this Section.
The Trustee agrees to pay to
each authenticating agent from time to time reasonable compensation for its services under this Section, and the Trustee shall be entitled
to be reimbursed for such payment, subject to the provisions of Section 607.
The provisions of Sections 104,
111, 306, 309, 603, 604, 605 and 607 shall be applicable to any authenticating agent.
Pursuant to each appointment
made under this Section, the Debt Securities of each series covered by such appointment may have endorsed thereon, in lieu of the Trustee’s
certificate of authentication, an alternate certificate of authentication in substantially the following form:
This is one of the Debt Securities,
of the series designated herein, described in the within-mentioned Indenture.
|
[______________________] |
|
|
|
|
By |
|
|
|
As Authenticating Agent for the Trustee |
|
By |
|
|
|
Authorized Signatory |
|
Dated |
|
ARTICLE SEVEN
Holders’ Lists and Reports By Trustee and Company
Section 701. Company to
Furnish Trustee Names and Addresses of Holders.
The Company will furnish or
cause to be furnished to the Trustee with respect to Debt Securities of each series for which it acts as Trustee:
(1) semi-annually,
not more than 15 days after the Regular Record Date in respect of the Debt Securities of such series or on May 15 and November 15 of each
year with respect to each series of Debt Securities for which there are no Regular Record Dates, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of Registered Securities as of such Regular Record Date or May 1 or November
1, as the case may be, and
(2) at such other
times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form
and content as of a date not more than 15 days prior to the time such list is furnished;
provided, however, that if and so long
as the Trustee shall be the Security Registrar, no such list need be furnished.
Section 702. Preservation
of Information; Communications to Holders.
(a) The Trustee shall preserve,
in as current a form as is reasonably practicable, the names and addresses of Holders of Registered Securities contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and addresses of Holders of Registered Securities received by the
Trustee in its capacity as Paying Agent or Security Registrar, if so acting. The Trustee may destroy any list furnished to it as provided
in Section 701 upon receipt of a new list so furnished. The Trustee shall preserve for at least two years the names and addresses of Holders
of Bearer Securities filed with the Trustee by such Holders.
(b) The rights of Holders to
communicate with other Holders with respect to their rights under this Indenture or under the Debt Securities, and the corresponding rights
and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
(c) Every Holder of Debt Securities
or coupons, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee shall
be held accountable by reason of any disclosure of information as to the names and addresses of the Holders made pursuant to the Trust
Indenture Act.
Section 703. Reports
by Trustee.
(a) Within 60 days after May
15 of each year commencing with the first May 15 after the first issuance of Debt Securities pursuant to this Indenture and at any other
time required by the Trust Indenture Act, the Trustee shall transmit to Holders such reports concerning the Trustee and its actions under
this Indenture and such other matters as may be required pursuant to the Trust Indenture Act in the manner required by the Trust Indenture
Act.
(b) A copy of each such report
shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Debt Securities of
such series are listed, with the Commission and also with the Company. The Company will notify the Trustee when any series of Debt Securities
are listed on any stock exchange.
Section 704. Reports
by Company.
The Company shall file with
the Trustee and the Commission, and transmit to Holders such information, documents and other reports, and such summaries thereof, as
may be required pursuant to the Trust Indenture Act at the time and in the manner pursuant to such Act; provided that such information,
documents or reports required to be filed with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act shall be filed
with the Trustee within 15 days of filing with the Commission.
Delivery of such reports, information
and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive
notice of any information contained therein or determinable from information contained therein, including the Company’s compliance
with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company
May Consolidate, etc. Only on Certain Terms.
The Company shall not consolidate
with or merge into any other corporation or convey, transfer or lease its properties and assets substantially as an entirety to any Person,
unless:
(1) the corporation
formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases,
the properties and assets of the Company substantially as an entirety shall be a corporation organized and existing under the laws of
the United States of America, any political subdivision thereof or any State thereof and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of (and
premium, if any) and interest (including all additional amounts, if any, payable pursuant to Section 1004) on all the Debt Securities
and any related coupons and the performance of every covenant of this Indenture on the part of the Company to be performed or observed;
(2) immediately
after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time, or both, would become
an Event of Default, shall have happened and be continuing; and
(3) the Company
has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel each stating that such consolidation, merger, conveyance,
transfer or lease and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating
to such transaction have been met.
Section 802. Successor
Corporation Substituted.
Upon any consolidation with
or merger into any other corporation, or any conveyance, transfer or lease of the properties and assets of the Company substantially as
an entirety in accordance with Section 801, the successor corporation formed by such consolidation or into which the Company is merged
or to which such conveyance, transfer or lease 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 had been named as the Company herein, and thereafter, except
in the case of a lease of the properties and assets of the Company substantially as an entirety, the Company (which term for this purpose
shall mean the Person named as the “Company” in the first paragraph of this instrument or any successor corporation which
shall theretofore have become such in the manner presented in this Article) shall be relieved of all obligations and covenants under this
Indenture and the Debt Securities and any coupons.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental
Indentures without Consent of Holders.
Without the consent of any Holders,
the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence
the succession of another corporation to the Company, and the assumption by such successor of the covenants of the Company herein and
in the Debt Securities contained; or
(2) to add to the
covenants of the Company, for the benefit of the Holders of all or any series of Debt Securities or coupons (and if such covenants are
to be for the benefit of less than all series of Debt Securities or coupons, stating that such covenants are expressly being included
solely for the benefit of such series), to convey, transfer, assign, mortgage or pledge any property to or with the Trustee, or to surrender
any right or power herein conferred upon the Company; or
(3) to add any additional
Events of Default (and if such Events of Default are to be applicable to less than all series of Debt Securities, stating that such Events
of Default are expressly being included solely to be applicable to such series); or
(4) to add to, change
or eliminate any of the provisions of this Indenture to provide that Bearer Securities may be registrable as to principal, to change or
eliminate any restrictions on the payment of principal (or premium, if any) on Registered Securities or of principal (or premium, if any)
or any interest on Bearer Securities, to permit Bearer Securities to be issued in exchange for Registered Securities of other authorized
denominations or to permit or facilitate the issuance of Debt Securities in uncertificated form, provided any such action shall
not adversely affect the interests of the Holders of Debt Securities of any series or any related coupons in any material respect; or
(5) to change or
eliminate any of the provisions of this Indenture, provided that any such change or elimination (a) shall become effective only
when there is no Debt Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled
to the benefit of such provisions or (b) shall not apply to any Debt Security Outstanding; or
(6) to establish
the form or terms of Debt Securities of any series as permitted by Sections 201 and 301; or
(7) to evidence
and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Debt Securities of one or more series
and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611(b); or
(8) to cure any
ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, to make
any other provisions with respect to matters or questions arising under this Indenture which shall not be inconsistent with the provisions
of this Indenture, or to make any other additions to, deletions from and other changes to the provisions hereof, provided such
other provisions shall not adversely affect the interests of the Holders of Debt Securities of any series or any related coupons in any
material respect; or
(9) to add to or
change or eliminate any provision of this Indenture as shall be necessary or desirable in accordance with any amendments to the Trust
Indenture Act, provided such action shall not adversely affect the interest of Holders of Debt Securities of any series or any
related coupons in any material respect.
Section 902. Supplemental
Indentures with Consent of Holders.
With the consent of the Holders
of not less than a majority in principal amount of the Outstanding Debt Securities of all series affected by such supplemental indenture,
acting together as a class, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution,
and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders under this
Indenture of such Debt Securities of such series and any related coupons; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Debt Security or coupon affected thereby,
(1) change the Stated
Maturity of the principal or any installment of principal of, or any installment of interest on, any Debt Security, or reduce the principal
amount thereof or the interest thereon or any premium payable upon redemption or repayment thereof, or change any obligation of the Company
to pay additional amounts pursuant to Section 1004 (except as contemplated by Section 801(1) and permitted by Section 901(1)), or reduce
the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 502, or change any Place of Payment, or the coin or currency in which any Debt Security or the
interest thereon or any coupon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption or repayment, on or after the Redemption Date or Repayment Date, as the case may
be); or
(2) reduce the percentage
in principal amount of the Outstanding Debt Securities of any series, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or reduce the requirements of Section 1404 for quorum or voting;
or
(3) modify any of
the provisions of this Section, Section 513 or Section 1006, except to increase any such percentage or to provide that certain other provisions
of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Debt Security affected thereby; provided,
however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the
Trustee” and concomitant changes in this Section and Section 1006, or the deletion of this proviso, in accordance with the requirements
of Section 611(b) and 901(7); or
(4) adversely affect
the right to repayment, if any, of Debt Securities of any series at the option of the Holders thereof;
and provided, further, that no change shall
be made in the provisions of Article Sixteen that will affect adversely the holders of Senior Debt without the consent of the holders
of all Senior Debt outstanding.
A supplemental indenture which
changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one
or more particular series of Debt Securities, or which modifies the rights of the Holders of Debt
Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Debt Securities of any other
series.
It shall not be necessary for
any Act of Holders of the Debt Securities under this Section to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution
of Supplemental Indentures.
In executing, or accepting the
additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created
by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise.
Section 904. Effect
of Supplemental Indentures.
Upon the execution of any supplemental
indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part
of this Indenture for all purposes; and every Holder of Debt Securities theretofore or thereafter authenticated and delivered hereunder
and of any coupons appertaining thereto shall be bound thereby.
Section 905. Conformity
with Trust Indenture Act.
Every supplemental indenture
executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 906. Reference in
Debt Securities to Supplemental Indentures.
Debt Securities of any series
authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Debt Securities of any series and any related coupons so modified as to conform, in the opinion of the Trustee
and the Board of Directors, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered
by the Trustee in exchange for Outstanding Debt Securities of such series and any related coupons.
ARTICLE TEN
Covenants
Section 1001. Payment
of Principal, Premium and Interest.
The Company covenants and agrees
for the benefit of each series of Debt Securities and any related coupons that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Debt Securities and any related coupons in accordance with the terms of the Debt Securities, any related coupons
and this Indenture. Any interest due on Bearer Securities on or before Maturity, other than additional amounts, if any, payable as provided
in Section 1004 in respect of principal of (or premium, if any, on) such a Debt Security, shall be payable only upon presentation and
surrender of the several coupons for such interest installments as are evidenced thereby as they severally mature.
Section 1002. Maintenance
of Office or Agency.
The Company will maintain in
each Place of Payment for any series of Debt Securities an office or agency where Debt Securities (but, except as otherwise provided below,
unless such Place of Payment is located outside the United States, not Bearer Securities) may be presented or surrendered for payment,
where Debt Securities may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company
in respect of the Debt Securities and this Indenture may be served. If Debt Securities of a series are issuable as Bearer Securities,
the Company will maintain, subject to any laws or regulations applicable thereto, an office or agency in a Place of Payment for such series
which is located outside the United States where Debt Securities of such series and the related coupons may be presented and surrendered
for payment (including payment of any additional amounts payable on Debt Securities of such series pursuant to Section 1004); provided,
however, that if the Debt Securities of such series are listed on any stock exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying Agent in any required city located outside the United States so long as
the Debt Securities of such series are listed on such exchange. The Company will give prompt written notice to the Trustee of the location,
and any change in the location, of any such office or agency. If at any time the Company shall fail to maintain any such required office
or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices or demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee its agent to receive all presentations,
surrenders, notices and demands, except that Bearer Securities of that series and the related coupons may be presented and surrendered
for payment (including payment of any additional amounts payable on Bearer Securities of that series pursuant to Section 1004) at the
place specified for the purpose pursuant to Section 301(5).
No payment of principal of,
premium or interest on Bearer Securities shall be made at any office or agency of the Company in the United States or by check mailed
to any address in the United States or by transfer to an account maintained with a bank located in the United States; provided, however,
payment of principal of and any premium and interest denominated in Dollars (including additional amounts payable in respect thereof)
on any Bearer Security may be made at an office or agency of, and designated by, the Company located in the United States if (but only
if) payment of the full amount of such principal, premium, interest or additional amounts in Dollars at all offices outside the United
States maintained for the purpose by the Company in accordance with this Indenture is illegal or effectively precluded by exchange controls
or other similar restrictions and the Trustee receives an Opinion of Counsel that such payment within the United States is legal. Unless
otherwise provided as contemplated by Section 301 with respect to any series of Debt Securities, at the option of the Holder of any Bearer
Security or related coupon, payment may be made by check in the currency designated for such payment pursuant to the terms of such Bearer
Security presented or mailed to an address outside the United States or by transfer to an account in such currency maintained by the payee
with a bank located outside the United States.
The Company may also from time
to time designate one or more other offices or agencies (in or outside of such Place of Payment) where the Debt Securities of one or more
series and any related coupons (subject to the preceding paragraph) 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 any series of Debt Securities for such
purposes. The Company will give prompt written notice to the Trustee of any such designation and any change in the location of any such
other office or agency.
Section 1003. Money
for Debt Securities Payments to Be Held in Trust.
If the Company shall at any
time act as its own Paying Agent with respect to any series of Debt Securities, it will, on or before each due date of the principal of
(and premium, if any) or interest on any of the Debt Securities of such series and any related coupons, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) or interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein provided, and will promptly notify the Trustee of its action
or failure so to act.
Whenever the Company shall have
one or more Paying Agents with respect to any series of Debt Securities, it will, on or before each due date of the principal of (and
premium, if any) or interest on any of the Debt Securities of such series and any related coupons, deposit with a Paying Agent a sum sufficient
to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled
to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of
its action or failure so to act.
The Company will cause each
Paying Agent with respect to any series of Debt Securities other than the Trustee to execute and deliver to the Trustee an instrument
in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will
(1) hold all sums
held by it for the payment of the principal of (and premium, if any) or interest on Debt Securities of such series and any related coupons
in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee
notice of any default by the Company (or any other obligor upon the Debt Securities of such series or any related coupons) in the making
of any payment of principal of (and premium, if any) or interest on the Debt Securities of such series or any related coupons; and
(3) at any time
during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time,
for the purpose of terminating its obligations under this Indenture with respect to Debt Securities of any series or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such
sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and,
upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such
money.
Any principal and interest received
on the Eligible Instruments deposited with the Trustee or any money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (and premium, if any) or interest on any Debt Security of any series or any related
coupons or any money on deposit with the Trustee or any Paying Agent representing amounts deducted from the Redemption Price or Repayment
Price with respect to unmatured coupons not presented upon redemption or exercise of the Holder’s option for repayment pursuant
to Section 1106 or 1303 and remaining unclaimed for two years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the
Holder of such Debt Security or any coupon appertaining thereto shall thereafter, as an unsecured general creditor, look only to the Company
for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money (including the principal and
interest received on Eligible Instruments deposited with the Trustee), and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense
of the Company cause to be published once, in an Authorized Newspaper of general circulation in the [Borough of Manhattan, The City of
New York], and each Place of Payment or mailed to each such Holder, or both, notice that such money remains unclaimed and that, after
a date specified therein, which shall not be less than 30 days from the date of such publication or mailing, any unclaimed balance of
such money then remaining will be repaid to the Company.
Section 1004. Payment
of Additional Amounts.
If the Debt Securities of a
series provide for the payment of additional amounts, the Company will pay to the Holder of any Debt Security of any series or any coupon
appertaining thereto additional amounts upon the terms and subject to the conditions provided therein. Whenever in this Indenture there
is mentioned, in any context, the payment of the principal of (or premium, if any) or interest on, or in respect of, any Debt Security
of any series or any related coupon or the net proceeds received on the sale or exchange of any Debt Security of any series, such mention
shall be deemed to include mention of the payment of additional amounts provided for in the terms of such Debt Securities and this Section
to the extent that, in such context, additional amounts are, were or would be payable in respect thereof pursuant to the provisions of
this Section and express mention of the payment of additional amounts (if applicable) in any provisions hereof shall not be construed
as excluding additional amounts in those provisions hereof where such express mention is not made.
If the Debt Securities of a
series provide for the payment of additional amounts, at least 10 days prior to the first Interest Payment Date with respect to that series
of Debt Securities (or if the Debt Securities of that series will not bear interest prior to Maturity, the first day on which a payment
of principal (and premium, if any) is made), and at least 10 days prior to each date of payment of principal (and premium, if any) or
interest if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate, the Company
will furnish the Trustee and the Company’s principal Paying Agent or Paying Agents, if other than the Trustee, with an Officers’
Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of (and premium, if any)
or interest on the Debt Securities of that series shall be made to Holders of Debt Securities of that series or the related coupons who
are United States Aliens without withholding for or on account of any tax, assessment or other governmental charge described in the Debt
Securities of that series. If any such withholding shall be required, then such Officers’ Certificate shall specify by country the
amount, if any, required to be withheld on such payments to such Holders of Debt Securities or coupons and the Company will pay to the
Trustee or such Paying Agent the additional amounts, if any, required by the terms of such Debt Securities and the first paragraph of
this Section. The Company covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless against, any loss, liability
or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted
by any of them in reliance on any Officers’ Certificate furnished pursuant to this Section.
Section 1005. Officers’
Certificate as to Default.
The Company will deliver to
the Trustee, on or before a date not more than four months after the end of each fiscal year of the Company ending after the date hereof,
an Officers’ Certificate, stating whether or not to the best knowledge of the signers thereof the Company is in default in the performance
and observance of any of the terms, provisions and conditions of this Indenture, and, if the Company shall be in default, specifying all
such defaults and the nature thereof of which they may have knowledge.
Section 1006. Waiver
of Certain Covenants.
The Company may omit in any
particular instance to comply with any covenant or condition applicable to the Debt Securities of any series pursuant to Section 301 unless
such covenant or condition is determined pursuant to Section 301 not to be subject to this provision if, before the time for such compliance
the Holders of at least a majority in principal amount of all series of the Debt Securities at the time Outstanding to which such covenant
or condition applies shall, acting together as a class, by Act of such Holders, either waive such compliance in such instance or generally
waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee
in respect of any such covenant or condition shall remain in full force and effect.
ARTICLE ELEVEN
Redemption of Debt Securities
Section 1101. Applicability
of Article.
Debt Securities of any series
which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified
as contemplated by Section 301 for Debt Securities of any series) in accordance with this Article.
Section 1102. Election
to Redeem; Notice to Trustee.
The election of the Company
to redeem any Debt Securities shall be evidenced by a Board Resolution. In case of any redemption at the election of the Company of less
than all of the Debt Securities of any series, the Company shall, at least 45 days prior to the Redemption Date fixed by the Company (unless
a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal amount and the
tenor and terms of the Debt Securities of any series to be redeemed. In the case of any redemption of Debt Securities prior to the expiration
of any restriction on such redemption provided in the terms of such Debt Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers’ Certificate evidencing compliance with such restriction.
Section 1103. Selection
by Trustee of Debt Securities to be Redeemed.
Except as otherwise specified
as contemplated by Section 301 for Debt Securities of any series, if less than all the Debt Securities of any series with like tenor and
terms are to be redeemed, the particular Debt Securities to be redeemed shall be selected not more than 60 days prior to the Redemption
Date by the Trustee, from the Outstanding Debt Securities of such series with like tenor and terms not previously called for redemption,
by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal
to the minimum authorized denomination for Debt Securities of such series or any integral multiple thereof which is also an authorized
denomination) of the principal amount of Registered Securities or Bearer Securities (if issued in more than one authorized denomination)
of such series of a denomination larger than the minimum authorized denomination for Debt Securities of such series.
The Trustee shall promptly notify
the Company in writing of the Debt Securities selected for redemption and, in the case of any Debt Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption of Debt Securities shall relate, in the case of any Debt
Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Debt Security which has been or is to
be redeemed.
Section 1104. Notice
of Redemption.
Notice of redemption shall be
given in the manner provided in Section 106 not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Debt
Securities to be redeemed.
All notices of redemption shall
state:
(1) the Redemption
Date;
(2) the Redemption
Price;
(3) if less than
all Outstanding Debt Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal
amounts) of the particular Debt Securities to be redeemed;
(4) that on the
Redemption Date the Redemption Price will become due and payable upon each such Debt Security to be redeemed, and that interest thereon
shall cease to accrue on and after said date;
(5) the Place or
Places of Payment where such Debt Securities, together in the case of Bearer Securities with all coupons, if any, appertaining thereto
maturing after the Redemption Date, are to be surrendered for payment of the Redemption Price;
(6) that Bearer
Securities may be surrendered for payment only at such place or places which are outside the United States, except as otherwise provided
in Section 1002;
(7) that the redemption
is for a sinking fund, if such is the case; and
(8) the CUSIP number,
if any.
A notice of redemption published
as contemplated by Section 106 need not identify particular Registered Securities to be redeemed.
Notice of redemption of Debt
Securities to be redeemed at the election of the Company shall be given by the Company, or, at the Company’s request, by the Trustee
in the name and at the expense of the Company.
Section 1105. Deposit
of Redemption Price.
On or prior to any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 1003) an amount of money and/or, to the extent the Debt Securities to be redeemed are denominated
and payable in Dollars only, Eligible Instruments the payments of principal and interest on which when due (and without reinvestment and
providing no tax liability will be imposed upon the Trustee or the Holders of the Debt Securities to be redeemed) will provide money on
or prior to the Redemption Date in such amounts as will (together with any money irrevocably deposited in trust with the Trustee, without
investment) be sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Debt Securities or portions thereof which are to be redeemed on that date; provided, however, that deposits
with respect to Bearer Securities shall be made with a Paying Agent or Paying Agents located outside the United States except as otherwise
provided in Section 1002, unless otherwise specified as contemplated by Section 301.
Section 1106. Debt
Securities Payable on Redemption Date.
Notice of redemption having
been given as aforesaid, the Debt Securities to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest)
such Debt Securities shall cease to bear interest and the coupons for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such Debt Security for redemption in accordance with said notice,
such Debt Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided,
however, that installments of interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable
only upon presentation and surrender of coupons for such interest (at an office or agency located outside the United States except as
otherwise provided in Section 1002), and provided further, that installments of interest on Registered Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Debt Securities, or one or more Predecessor Securities,
registered as such on the relevant Record Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered
for redemption shall not be accompanied by all related coupons maturing after the Redemption Date, such Bearer Security may be paid after
deducting from the Redemption Price an amount equal to the face amount of all such missing coupons, or the surrender of such missing coupon
or coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of such Bearer Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall have been made from the Redemption Price, such Holder shall
be entitled to receive the amount so deducted without interest thereon; provided, however, that interest represented by coupons
shall be payable only upon presentation and surrender of those coupons at an office or agency located outside of the United States except
as otherwise provided in Section 1002.
If any Debt Security called
for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the Debt Security.
Section 1107. Debt
Securities Redeemed in Part.
Any Registered Security which
is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company, the Security Registrar or the
Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, the Security Registrar
and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Debt Security without service charge, a new Registered Security or Registered
Securities of the same series and of like tenor and terms, of any authorized denominations as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of the Debt Security so surrendered.
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability
of Article.
The provisions of this Article
shall be applicable to any sinking fund for the retirement of Debt Securities of a series except as otherwise specified as contemplated
by Section 301 for Debt Securities of such series.
The minimum amount of any sinking
fund payment provided for by the terms of Debt Securities of any series is herein referred to as a “mandatory sinking fund payment”,
and any payment in excess of such minimum amount provided for by the term of Debt Securities of any series is herein referred to as an
“optional sinking fund payment”. If provided for by the terms of Debt Securities of any series, the amount of any sinking
fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of
Debt Securities of any series as provided for by the terms of Debt Securities of such series.
Section 1202. Satisfaction
of Sinking Fund Payments with Debt Securities.
The Company (1) may deliver
Outstanding Debt Securities of a series (other than any previously called for redemption), together in the case of any Bearer Securities
of such series with all unmatured coupons appertaining thereto, and (2) may apply as a credit Debt Securities of a series which have been
redeemed either at the election of the Company pursuant to the terms of such Debt Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Debt Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Debt Securities of such series required to be made pursuant to the terms of such Debt Securities as provided
for by the terms of such series; provided that such Debt Securities have not been previously so credited. Such Debt Securities
shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Debt Securities for redemption
through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If as a result of the
delivery or credit of Debt Securities in lieu of cash payments pursuant to this Section 1202, the principal amount of Debt Securities
to be redeemed in order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need not call Debt Securities for
redemption, except upon Company Request, and such cash payment shall be held by the Trustee or a Paying Agent and applied to the next
succeeding sinking fund payment, provided, however, that the Trustee or such Paying Agent shall at the request of the Company from
time to time pay over and deliver to the Company any cash payment so being held by the Trustee or such Paying Agent upon delivery by the
Company to the Trustee of Debt Securities purchased by the Company having an unpaid principal amount equal to the cash payment requested
to be released to the Company.
Section 1203. Redemption
of Debt Securities for Sinking Fund.
Not less than 60 days prior
to each sinking fund payment date for any series of Debt Securities (unless a shorter period shall be satisfactory to the Trustee), the
Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash, the portion
thereof, if any, which is to be satisfied by crediting Debt Securities of that series pursuant to Section 1202 and the basis for any such
credit and, prior to or concurrently with the delivery of such Officers’ Certificate, will also deliver to the Trustee any Debt
Securities to be so credited and not theretofore delivered to the Trustee. Not less than 30 days (unless a shorter period shall be satisfactory
to the Trustee) before each such sinking fund payment date the Trustee shall select the Debt Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the name of and at
the expense of the Company in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Debt Securities
shall be made upon the terms and in the manner stated in Sections 1105, 1106 and 1107.
ARTICLE THIRTEEN
Repayment at the Option of Holders
Section 1301. Applicability
of Article.
Debt Securities of any series
which are repayable at the option of the Holders thereof before their Stated Maturity shall be repaid in accordance with their terms and
(except as otherwise specified pursuant to Section 301 for Debt Securities of such series) in accordance with this Article.
Section 1302. Repayment
of Debt Securities.
Each Debt Security which is
subject to repayment in whole or in part at the option of the Holder thereof on a Repayment Date shall be repaid at the applicable Repayment
Price together with interest accrued to such Repayment Date as specified pursuant to Section 301.
Section 1303. Exercise
of Option; Notice.
Each Holder desiring to exercise
such Holder’s option for repayment shall, as conditions to such repayment, surrender the Debt Security to be repaid in whole or
in part together with written notice of the exercise of such option at any office or agency of the Company in a Place of Payment, not
less than 30 nor more than 45 days prior to the Repayment Date; provided, however, that surrender of Bearer Securities together
with written notice of exercise of such option shall be made at an office or agency located outside the United States except as otherwise
provided in Section 1002. Such notice, which shall be irrevocable, shall specify the principal amount of such Debt Security to be repaid,
which shall be equal to the minimum authorized denomination for such Debt Security or an integral multiple thereof, and shall identify
the Debt Security to be repaid and, in the case of a partial repayment of the Debt Security, shall specify the denomination or denominations
of the Debt Security or Debt Securities of the same series to be issued to the Holder for the portion of the principal of the Debt Security
surrendered which is not to be repaid.
If any Bearer Security surrendered
for repayment shall not be accompanied by all unmatured coupons and all matured coupons in default, such Bearer Security may be paid after
deducting from the Repayment Price an amount equal to the face amount of all such missing coupons, or the surrender of such missing coupon
or coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of such Bearer Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall have been made from the Repayment Price, such Holder shall
be entitled to receive the amount so deducted without interest thereon; provided, however, that interest represented by coupons
shall be payable only at an office or agency located outside the United States except as otherwise provided in Section 1002.
The Company shall execute and
the Trustee shall authenticate and deliver without service charge to the Holder of any Registered Security so surrendered a new Registered
Security or Securities of the same series, of any authorized denomination specified in the foregoing notice, in an aggregate principal
amount equal to any portion of the principal of the Registered Security so surrendered which is not to be repaid.
The Company shall execute and
the Trustee shall authenticate and deliver without service charge to the Holder of any Bearer Security so surrendered a new Registered
Security or Securities or new Bearer Security or Securities (and all related unmatured coupons and matured coupons in default) or any
combination thereof of the same series of any authorized denomination or denominations specified in the foregoing notice, in an aggregate
principal amount equal to any portion of the principal of the Debt Security so surrendered which is not to be paid; provided, however,
that the issuance of a Registered Security therefor shall be subject to applicable laws and regulations, including provisions of the United
States Federal income tax laws and regulations in effect at the time of the exchange; neither the Company, the Trustee nor the Security
Registrar shall issue Registered Securities for Bearer Securities if it has received an Opinion of Counsel that as a result of such issuance
the Company would suffer adverse consequences under the United States Federal income tax laws then in effect and the Company has delivered
to the Trustee a Company Order directing the Trustee not to make such issuances thereafter unless and until the Trustee receives a subsequent
Company Order to the contrary. The Company shall deliver copies of such Company Order to the Security Registrar.
For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the repayment of Debt Securities shall relate, in the case of any Debt
Security repaid or to be repaid only in part, to the portion of the principal of such Debt Security which has been or is to be repaid.
Section 1304. Election
of Repayment by Remarketing Entities.
The Company may elect, with
respect to Debt Securities of any series which are repayable at the option of the Holders thereof before their Stated Maturity, at any
time prior to any Repayment Date to designate one or more Remarketing Entities to purchase, at a price equal to the Repayment Price, Debt
Securities of such series from the Holders thereof who give notice and surrender their Debt Securities in accordance with Section 1303.
Section 1305. Securities
Payable on the Repayment Date.
Notice of exercise of the option
of repayment having been given and the Debt Securities so to be repaid having been surrendered as aforesaid, such Debt Securities shall,
unless purchased in accordance with Section 1304, on the Repayment Date become due and payable at the price therein specified and from
and after the Repayment Date such Debt Securities shall cease to bear interest and shall be paid on the Repayment Date, and the coupons
for such interest appertaining to Bearer Securities so to be repaid, except to the extent provided above, shall be void, unless the Company
shall default in the payment of such price in which case the Company shall continue to be obligated for the principal amount of such Debt
Securities and shall be obligated to pay interest on such principal amount at the rate borne by such Debt Securities from time to time
until payment in full of such principal amount.
ARTICLE FOURTEEN
Meetings of Holders of Debt Securities
Section 1401. Purposes
for Which Meetings May Be Called.
If Debt Securities of a series
are issuable in whole or in part as Bearer Securities, a meeting of Holders of Debt Securities of such series may be called at any time
and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent, waiver
or other Act provided by this Indenture to be made, given or taken by Holders of Debt Securities of such series.
Section 1402. Call,
Notice and Place of Meetings.
(a) The Trustee may at any time
call a meeting of Holders of Debt Securities of any series issuable as Bearer Securities for any purpose specified in Section 1401, to
be held at such time and at such place in the [Borough of Manhattan, The City of New York, or in London] as the Trustee shall determine.
Notice of every meeting of Holders of Debt Securities of any series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 106, not less than 21 nor more
than 180 days prior to the date fixed for the meeting.
(b) In case at any time the
Company, pursuant to a Board Resolution, or the Holders of at least 10% in principal amount of the Outstanding Debt Securities of any
series shall have requested the Trustee to call a meeting of the Holders of Debt Securities of such series for any purpose specified in
Section 1401, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall
not have made the first publication of the notice of such meeting within 21 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the Company or the Holders of Debt Securities of such series in the amount
above specified, as the case may be, may determine the time and the place in the [Borough of Manhattan, The City of New York, or in London]
for such meeting and may call such meeting for such purposes by giving notice thereof as provided in subsection (a) of this Section.
Section 1403. Persons
Entitled to Vote at Meetings.
To be entitled to vote at any
meeting of Holders of Debt Securities of any series, a Person shall be (1) a Holder of one or more Outstanding Debt Securities of such
series, or (2) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Debt Securities
of such series by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders of
Debt Securities of any series shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee
and its counsel and any representatives of the Company and its counsel.
Section 1404. Quorum;
Action.
The Persons entitled to vote
a majority in principal amount of the Outstanding Debt Securities of a series shall constitute a quorum for a meeting of Holders of Debt
Securities of such series. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Debt Securities of such series, be dissolved. In the absence of a quorum in any other case the
meeting may be adjourned for a period of not less than 10 days as determined by the chairperson of the meeting prior to the adjournment
of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairperson of the meeting prior to the adjournment of such adjourned meeting. Notice of
this reconvening of any adjourned meeting shall be given as provided in Section 1402(a), except that such notice need be given only once
not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned
meeting shall state expressly the percentage, as provided above, of the principal amount of the Outstanding Debt Securities of such series
which shall constitute a quorum.
Except as limited by the proviso
to Section 902, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may
be adopted only by the affirmative vote of the Holders of a majority in principal amount of the Outstanding Debt Securities of that series,
provided however, that, except as limited by the proviso to Section 902, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other Act which this Indenture expressly provides may be made, given or taken by the Holders of
a specified percentage, which is less than a majority, in principal amount of the Outstanding Debt Securities of a series may be adopted
at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in principal amount of the Outstanding Debt Securities of that series.
Any resolution passed or decision
taken at any meeting of Holders of Debt Securities of any series duly held in accordance with this Section shall be binding on all the
Holders of Debt Securities of such series and the related coupons, whether or not present or represented at the meeting.
Section 1405. Determination
of Voting Rights; Conduct and Adjournment of Meetings.
(a) Notwithstanding any other
provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of
Debt Securities of such series in regard to proof of the holding of Debt Securities of such series and of the appointment of proxies and
in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence
of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted
or required by any such regulations, the holding of Debt Securities shall be proved in the manner specified in Section 104 and the appointment
of any proxy shall be proved in the manner specified in Section 104 or, in the case of Bearer Securities, by having the signature of the
person executing the proxy witnessed or guaranteed by any trust company, bank or banker authorized by Section 104 to certify to the holding
of Bearer Securities. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an
instrument in writing, appoint a temporary chairperson of the meeting, unless the meeting shall have been called by the Company or by
Holders of Debt Securities as provided in Section 1402(b), in which case the Company or the Holders of Debt Securities of the series calling
the meeting, as the case may be, shall in like manner appoint a temporary chairperson. A permanent chairperson and a permanent secretary
of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding Debt Securities
of such series represented at the meeting.
(c) At any meeting each Holder
of a Debt Security of such series or proxy shall be entitled to vote based on the principal amount of the Outstanding Debt Securities
of such series held or represented by such Holder; provided, however, that no vote shall be cast or counted at any meeting in respect
of any Debt Security challenged as not Outstanding and ruled by the chairperson of the meeting not to be Outstanding. The chairperson
of the meeting shall have no right to vote, except as a Holder of a Debt Security of such series or proxy.
(d) Any meeting of Holders of
Debt Securities of any series duly called pursuant to Section 1402 at which a quorum is present may be adjourned from time to time by
Persons entitled to vote a majority in principal amount of the Outstanding Debt Securities of such series represented at the meeting;
and the meeting may be held as so adjourned without further notice.
Section 1406. Counting
Votes and Recording Action of Meetings.
The vote upon any resolution
submitted to any meeting of Holders of Debt Securities of any series shall be by written ballots on which shall be subscribed the signatures
of the Holders of Debt Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Debt Securities of such series held or represented by them. The permanent chairperson of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary
of the meeting their verified written reports in triplicate of all votes cast at the meeting. A record, at least in triplicate, of the
proceedings of each meeting of Holders of Debt Securities of any series shall be prepared by the secretary of the meeting and there shall
be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as
provided in Section 1402 and, if applicable, Section 1401. Each copy shall be signed and verified by the affidavits of the permanent chairperson
and secretary of the meeting and one such copy shall be delivered to the Company, and another to the Trustee to be preserved by the Trustee,
the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
ARTICLE FIFTEEN
Defeasance
Section 1501. Termination
of Company’s Obligations.
If this Section 1501 is specified,
as contemplated by Section 301, to be applicable to any series of Debt Securities and if the Company deposits irrevocably in trust with
the Trustee money and/or, to the extent such Debt Securities are denominated and payable in Dollars only, Eligible Instruments the payments
of principal and interest on which when due (and without reinvestment and providing no tax liability will be imposed upon the Trustee
or the Holders of such Debt Securities) will provide money in such amounts as will (together with any money irrevocably deposited in trust
with the Trustee, without investment) be sufficient to pay the principal of (and premium, if any) and any installment of principal of
(and premium, if any) or interest when due on the Debt Securities of such series and any coupons appertaining thereto and any mandatory
sinking fund, repayment or analogous payments thereon on the scheduled due dates therefor at the Stated Maturity thereof, the Company’s
obligations under any covenant determined pursuant to Section 301 to be subject to this Section shall terminate with respect to the Debt
Securities of the series for which such deposit was made; provided, however, that (i) no Event of Default with respect to the Debt
Securities of such series under Section 501(5) or 501(6) or event that with notice or lapse of time or both would constitute such an Event
of Default shall have occurred and be continuing on such date, (ii) such deposit will not result in a breach of, or constitute a default
under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound, and (iii) such termination
shall not relieve the Company of its obligations under the Debt Securities of such series and this Indenture to pay when due the principal
of (and premium, if any) and interest and additional amounts on such Debt Securities and any coupons appertaining thereto if such Debt
Securities or coupons are not paid (or payment is not provided for) when due from the money and Eligible Instruments (and the proceeds
thereof) so deposited.
It shall be a condition to the
deposit of cash and/or Eligible Instruments and the termination of the Company’s obligations pursuant to the provisions of this
Section with respect to the Debt Securities of any series under any covenant determined pursuant to Section 301 to be subject to this
Section that the Company deliver to the Trustee (i) an Opinion of Counsel to the effect that: (a) Holders of Debt Securities of such series
and any coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit
and termination and (b) such Holders (and future Holders) will be subject to tax in the same amount, manner and timing as if such deposit
and termination had not occurred, (ii) an Officers’ Certificate to the effect that under the laws in effect on the date such money
and/or Eligible Instruments are deposited with the Trustee, the amount thereof will be sufficient, after payment of all Federal, state
and local taxes in respect thereof payable by the Trustee, to pay principal (and premium, if any) and interest when due on the Debt Securities
of such series and any coupons appertaining thereto; and (iii) an Officers’ Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to the defeasance contemplated in this Section have been complied with.
It shall be an additional condition
to the deposit of cash and/or Eligible Instruments and the termination of the Company’s obligations pursuant to the provisions of
this Section under any covenant determined pursuant to Section 301 to be subject to this Section, with respect to the Debt Securities
of any series then listed, that the Company deliver an Opinion of Counsel that the Debt Securities of such series will not be delisted
as a result of such deposit and termination.
After a deposit as provided
herein, the Trustee shall, upon Company Request, acknowledge in writing the discharge of the Company’s obligations pursuant to the
provisions of this Section with respect to the Debt Securities of such series under any covenant determined pursuant to Section 301 to
be subject to this Section.
Section 1502. Repayment
to Company.
The Trustee and any Paying Agent
shall promptly pay to the Company upon Company Request any money or Eligible Instruments not required for the payment of the principal
of (and premium, if any) and interest on the Debt Securities of any series and any related coupons for which money or Eligible Instruments
have been deposited pursuant to Section 1501 held by them at any time.
The Trustee and any Paying Agent
shall promptly pay to the Company upon Company Request any money held by them for the payment of principal (and premium, if any) and interest
that remains unclaimed for two years after the Maturity of the Debt Securities for which a deposit has been made pursuant to Section 1501.
After such payment to the Company, the Holders of the Debt Securities of such series and any related coupons shall thereafter, as unsecured
general creditors, look only to the Company for the payment thereof.
Section 1503. Indemnity
for Eligible Instruments.
The Company shall pay and shall
indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the deposited Eligible Instruments or the principal
or interest received on such Eligible Instruments.
ARTICLE SIXTEEN
Subordination of Debt Securities
Section 1601. Debt
Securities Subordinate to Senior Debt.
The Company covenants and agrees
that anything in this Indenture or the Debt Securities of any series to the contrary notwithstanding, the indebtedness evidenced by the
Debt Securities of each series and any coupons appurtenant thereto is subordinate and junior in right of payment to all Senior Debt to
the extent provided herein, and each Holder of Debt Securities of each series and coupons appurtenant thereto, by such Holder’s
acceptance thereof, likewise covenants and agrees to the subordination herein provided and shall be bound by the provisions hereof. Senior
Debt shall continue to be Senior Debt and entitled to the benefits of these subordination provisions irrespective of any amendment, modification
or waiver of any term of the Senior Debt or extension or renewal of the Senior Debt.
In the event of
(i) any insolvency,
bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company,
its creditors or its property,
(ii) any proceeding
for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or
bankruptcy proceedings,
(iii) any assignment
by the Company for the benefit of creditors, or
(iv) any other marshalling
of the assets of the Company,
all Senior Debt (including any interest thereon
accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash,
securities or other property, shall be made to any Holder of any of the Debt Securities or coupons appurtenant thereto on account thereof.
Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these
subordination provisions with respect to the indebtedness evidenced by the Debt Securities, to the payment of all Senior Debt at the time
outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise
(but for these subordination provisions) be payable or deliverable in respect of the Debt Securities of any series or coupons appurtenant
thereto shall be paid or delivered directly to the holders of Senior Debt in accordance with the priorities then existing among such holders
until all Senior Debt (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in
full. In the event of any such proceeding, after payment in full of all sums owing with respect to Senior Debt, the Holders of the Debt
Securities and coupons appurtenant thereto, together with the holders of any obligations of the Company ranking on a parity with the Debt
Securities, shall be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing on account of
unpaid principal of (and premium, if any) and interest on the Debt Securities and such other obligations before any payment or other distribution,
whether in cash, property or otherwise, shall be made on account of any capital stock or any obligations of the Company ranking junior
to the Debt Securities and such other obligations.
In the event that, notwithstanding
the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than
securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate,
at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Debt Securities, to
the payment of all Senior Debt at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization
or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution
or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the
Senior Debt at the time outstanding in accordance with the priorities then existing among such holders for application to the payment
of all Senior Debt remaining unpaid, to the extent necessary to pay all such Senior Debt in full. In the event of the failure of the Trustee
or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Debt is hereby irrevocably authorized
to endorse or assign the same.
No present or future holder
of any Senior Debt shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Debt Securities by any
act or failure to act on the part of the Company. Nothing contained herein shall impair, as between the Company and the Holders of Debt
Securities of each series, the obligation of the Company to pay to such Holders the principal of (and premium, if any) and interest on
such Debt Securities and coupons appurtenant thereto or prevent the Trustee or the Holder from exercising all rights, powers and remedies
otherwise permitted by applicable law or hereunder upon a default or Event of Default hereunder, all subject to the rights of the holders
of the Senior Debt to receive cash, securities or other property otherwise payable or deliverable to the Holders.
Senior Debt shall not be deemed
to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such
Senior Debt then outstanding. Upon the payment in full of all Senior Debt, the Holders of Debt Securities of each series and coupons appurtenant
thereto, if any, shall be subrogated to all rights of any holders of Senior Debt to receive any further payments or distributions applicable
to the Senior Debt until the indebtedness evidenced by the Debt Securities of such series and coupons appertaining thereto, if any, shall
have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities
or other property which otherwise would be paid or distributed to the holders of Senior Debt shall, as between the Company and its creditors
other than the holders of Senior Debt, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company
on account of Senior Debt, and not on account of the Debt Securities of such series.
The Trustee and Holders will
take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Debt or consent
to the filing of a financing statement with respect hereto) as may, in the opinion of counsel designated by the holders of a majority
in principal amount of the Senior Debt at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination
effected by these provisions.
The provisions of this Section
1601 shall not impair any rights, interests, remedies or powers of any secured creditor of the Company in respect of any security interest
the creation of which is not prohibited by the provisions of this Indenture.
Section 1602. Trustee
and Holders of Debt Securities May Rely on Certificate of Liquidating Agent; Trustee May Require Further Evidence as to Ownership of Senior
Debt; Trustee Not Fiduciary to Holders of Senior Debt.
Upon any payment or distribution
of assets of the Company referred to in this Article Sixteen, the Trustee and the Holders shall be entitled to rely upon an order or decree
made by any court of competent jurisdiction in which such dissolution or winding up or liquidation or reorganization or arrangement proceedings
are pending or upon a certificate of the trustee in bankruptcy, receiver, assignee for the benefit of creditors or other Person making
such payment or distribution, delivered to the Trustee or to the Holders, for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Senior Debt and other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article Sixteen. In the absence of any
such bankruptcy trustee, receiver, assignee or other Person, the Trustee shall be entitled to rely upon a written notice by a Person representing
himself or herself to be a holder of Senior Debt (or a trustee or representative on behalf of such holder) as evidence that such Person
is a holder of such Senior Debt (or is such a trustee or representative). In the event that the Trustee determines, in good faith, that
further evidence is required with respect to the right of any Person as a holder of Senior Debt to participate in any payments or distributions
pursuant to this Article Sixteen, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Trustee
as to the amount of Senior Debt held by such Person, as to the extent to which such Person is entitled to participate in such payment
or distribution, and as to other facts pertinent to the rights of such Person under this Article Sixteen, and if such evidence is not
furnished, the Trustee may offer any payment to such Person pending judicial determination as to the right of such Person to receive payment.
The Trustee, however, shall not be deemed to owe any fiduciary duty to the holders of Senior Debt.
Section 1603. Payment
Permitted If No Default.
Nothing contained in this Article
Sixteen or elsewhere in this Indenture, or in any of the Debt Securities, shall prevent (a) the Company at any time, except during the
pendency of any dissolution, winding up, liquidation or reorganization proceedings referred to in Section 1601, from making payments of
the principal of (or premium, if any) or interest on the Debt Securities or (b) the application by the Trustee or any Paying Agent of
any moneys deposited with it hereunder to payments of the principal of or interest on the Debt Securities, if, at the time of such deposit,
the Trustee or such Paying Agent, as the case may be, did not have the written notice provided for in Section 1604 of any event prohibiting
the making of such deposit, or if, at the time of such deposit (whether or not in trust) by the Company with the Trustee or any Paying
Agent (other than the Company) such payment would not have been prohibited by the provisions of this Article, and the Trustee or any Paying
Agent shall not be affected by any notice to the contrary received by it on or after such date.
Section 1604. Trustee
Not Charged with Knowledge of Prohibition.
Anything in this Article Sixteen
or elsewhere in this Indenture contained to the contrary notwithstanding, the Trustee shall not at any time be charged with knowledge
of the existence of any facts which would prohibit the making of any payment of money to or by the Trustee and shall be entitled conclusively
to assume that no such facts exist and that no event specified in Section 1601 has happened, until the Trustee shall have received an
Officers’ Certificate to that effect or notice in writing to that effect signed by or on behalf of the holder or holders, or their
representatives, of Senior Debt who shall have been certified by the Company or otherwise established to the reasonable satisfaction of
the Trustee to be such holder or holders or representatives or from any trustee under any indenture pursuant to which such Senior Debt
shall be outstanding. The Company shall give prompt written notice to the Trustee and to the Paying Agent of any facts which would prohibit
the payment of money to or by the Trustee or any Paying Agent.
Section 1605. Trustee
to Effectuate Subordination.
Each Holder of Debt Securities
or coupons by such Holder’s acceptance thereof authorizes and directs the Trustee in such Holder’s behalf to take such action
as may be necessary or appropriate to effectuate the subordination as between such Holder and holders of Senior Debt as provided in this
Article and appoints the Trustee its attorney-in-fact for any and all such purposes.
Section 1606. Rights
of Trustee as Holder of Senior Debt.
The Trustee shall be entitled
to all the rights set forth in this Article with respect to any Senior Debt which may at the time be held by it, to the same extent as
any other holder of Senior Debt; provided that nothing in this Article shall deprive the Trustee of any rights as such holder and
provided further that nothing in this Article shall apply to claims of, or payments to, the Trustee under or pursuant to Section
607.
Section 1607. Article
Applicable to Paying Agents.
In case at any time any Paying
Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term “Trustee” as
used in this Article shall in such case (unless the context shall otherwise require) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if the Paying Agent were named in this Article in addition to or in
place of the Trustee, provided, however, that Sections 1604 and 1606 shall not apply to the Company or any Affiliate of the Company
if the Company or such Affiliate acts as Paying Agent.
Section 1608. Subordination
Rights Not Impaired by Acts or Omissions of the Company or Holders of Senior Debt.
No right of any present or future
holders of any Senior Debt to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act
or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such holder, or by any noncompliance
by the Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof which any such holder may
have or be otherwise charged with. The holders of Senior Debt may, at any time or from time to time and in their absolute discretion,
change the manner, place or terms of payment, change or extend the time of payment of, or renew or alter, any such Senior Debt, or amend
or supplement any instrument pursuant to which any such Senior Debt is issued or by which it may be secured, or release any security therefor,
or exercise or refrain from exercising any other of their rights under the Senior Debt including, without limitation, the waiver of default
thereunder, all without notice to or assent from the Holders of the Debt Securities or the Trustee and without affecting the obligations
of the Company, the Trustee or the Holders of the Debt Securities under this Article.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly executed as of the day and year first above written.
|
AUDIOEYE, INC. |
|
|
|
By |
|
|
|
Its |
|
|
|
|
[_______________________] |
|
|
|
By |
|
|
|
Its |
|
[Signature Page to Indenture]
EXHIBIT A-1
[Form of Certificate of Beneficial Ownership by
a
Non-United States Person or by Certain Other Persons]
Certificate
AUDIOEYE, INC.
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made to
the Indenture dated as of [_________________] (the “Indenture”) between AudioEye, Inc. and [______________] (the “Trustee”),
covering the above-captioned Debt Securities. This is to certify that as of the date hereof, _______________________ principal amount
of Debt Securities credited to you for our account (i) is owned by persons that are not United States Persons, as defined below; (ii)
is owned by United States Persons that are (a) foreign branches of United States financial institutions (as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(v)) (“financial institutions”) purchasing for their own account or for resale, or (b) United States
Persons who acquired the Debt Securities through foreign branches of United States financial institutions and who hold the Debt Securities
through such United States financial institutions on the date hereof (and in either case (a) or (b), each such United States financial
institution encloses herewith a certificate in the form of Exhibit A-2 to the Indenture); or (iii) is owned by United States or foreign
financial institutions for purposes of resale during the restricted period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
which United States or foreign financial institutions described in clause (iii) above (whether or not also described in clause (i) or
(ii)) certify that they have not acquired the Debt Securities for purposes of resale directly or indirectly to a United States Person
or to a person within the United States or its possessions.
[Insert if certificate does
not relate to an interest payment--We undertake to advise you by tested telex followed by written confirmation if the above statement
as to beneficial ownership is not correct on the date of delivery of the above-captioned Debt Securities in bearer form as to all of such
Debt Securities with respect to such of said Debt Securities as then appear in your books as being held for our account.] We understand
that this certificate is required in connection with United States tax laws. We irrevocably authorize you to produce this certificate
or a copy hereof to any interested party in any administrative or legal proceedings with respect to the matters covered by this certificate.
“United States Person” shall mean a citizen or resident of the United States of America (including the District of Columbia),
a corporation, partnership or other entity created or organized in or under the laws of the United States or any political subdivision
thereof or an estate or trust that is subject to United States Federal income taxation regardless of the source of its income.
[This certificate excepts
and does not relate to principal amount of Debt Securities credited to you for our account and to which we are not now able to make the
certification set forth above. We understand that definitive Debt Securities cannot be delivered and interest cannot be paid until we
are able to so certify with respect to such principal amount of Debt Securities.]*
Dated:
[To be dated on or after
_______________ (the date
determined as provided in the
Indenture)]
|
[Name of Person Entitled to Receive Bearer Security] |
|
(Authorized Signatory) |
|
|
|
Name: |
|
|
|
|
Title: |
|
*Delete if inappropriate
EXHIBIT A-2
[Form of Certificate of Status as a
Foreign Branch of a United States Financial Institution]
Certificate
AUDIOEYE, INC.
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made to
the Indenture dated as of [________________] (the “Indenture”), between AudioEye, Inc. and [__________________], relating
to the offering of the above-captioned Debt Securities (the “Debt Securities”). Unless herein defined, terms used herein have
the same meaning as given to them in the Indenture.
The undersigned represents
that it is a branch located outside the United States of a United States securities clearing organization, bank or other financial institution
(as defined in U.S. Treasury Regulation Section 1.165-12(c)(1)(v)) that holds customers’ securities in the ordinary course of its
trade or business and agrees, and authorizes you to advise the issuer or the issuer’s agent, that it will comply with the requirements
of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the regulations thereunder and is not purchasing for resale
directly or indirectly to a United States Person or to a person within the United States or its possessions. We undertake to advise you
by tested telex followed by written confirmation if the statement in the immediately preceding sentence is not correct on the date of
delivery of the above-captioned Debt Securities in bearer form.
We understand that this certificate
is required in connection with the United States tax laws. We irrevocably authorize you to produce this certificate or a copy hereof to
any interested party in any administrative or legal proceedings with respect to the matters covered by this certificate.
Dated:
[To be dated on or after
_________________ (the date
determined as provided in the Indenture)]
|
[Name of Person Entitled to Receive Bearer Security] |
|
(Authorized Signatory) |
|
|
|
Name: |
|
|
|
|
Title: |
|
EXHIBIT B
[Form of Certificate to be Given by Euroclear and
Clearstream
in Connection with the Exchange of All or a Portion
of a
Temporary Global Security or to Obtain
Interest Prior to Exchange]
Certificate
AUDIOEYE, INC.
[Insert title or sufficient description of Debt
Securities to be delivered]
We refer to that portion,
, of the Global Security representing the above-captioned issue [which is herewith submitted to be exchanged for definitive Debt Securities]*
[for which we are seeking to obtain payment of interest]* (the “Submitted Portion”). This is to certify, pursuant to the Indenture
dated as of [_______________] (the “Indenture”) between AudioEye, Inc. and [__________________] (the “Trustee”),
that we have received in writing, by tested telex or by electronic transmission from member organizations with respect to each of the
persons appearing in our records as being entitled to a beneficial interest in the Submitted Portion a Certificate of Beneficial Ownership
by a Non-United States Person or by Certain Other Persons [and, in some cases, a Certificate of Status as a Foreign Branch of a United
States Financial Institution, authorizing us to inform the issuer or the issuer’s agent that it will comply with the requirements
of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the regulations thereunder]* substantially in the form of
Exhibit A-1 [and A-2]* to the Indenture.
We hereby request that you
deliver to the office of _________________________ in ______________________ definitive Bearer Securities in the denominations on the
attached Schedule A.
We further certify that as
of the date hereof we have not received any notification from any of the persons giving such certificates to the effect that the statements
made by them with respect to any part of the Submitted Portion are no longer true and cannot be relied on as of the date hereof.
Dated:
|
[ |
|
, as |
|
Operator of the Euroclear System] [Clearstream] |
|
|
|
By: |
|
*Delete if inappropriate.
EXHIBIT 5.1
|
Faegre Drinker
Biddle & Reath LLP |
|
2200 Wells Fargo Center |
|
90 South Seventh Street |
|
Minneapolis, Minnesota 55402 |
|
+1 612 766 7000 main |
|
+1 612 766 1600 fax |
February 7, 2024
AudioEye, Inc.
5210 E. Williams Circle, Suite 750
Tucson, AZ 85711
Ladies and Gentlemen:
We have acted as counsel for
AudioEye, Inc., a Delaware corporation (the “Company”), in connection with the preparation of a Registration Statement
on Form S-3 (the “Registration Statement”) of the Company filed with the Securities and Exchange Commission (the
“Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to (a)
the issuance and sale from time to time by the Company, pursuant to Rule 415 of the Securities Act, of the following securities of the
Company having an aggregate initial offering price of up to $150,000,000: (i) shares of common stock, $0.00001 par value per share (“Common
Stock”); (ii) shares of preferred stock, having a par value as determined by the Company’s Board of Directors (“Preferred
Stock”), in one or more classes or series; (iii) one or more series of senior debt securities (“Senior Debt Securities”);
(iv) one or more series of subordinated debt securities (“Subordinated Debt Securities” and, together with the Senior
Debt Securities, the “Debt Securities”); (v) warrants to purchase shares of Common Stock, shares of Preferred Stock
or Debt Securities (collectively, “Warrants”); (vi) units, consisting of Common Stock, Preferred Stock, Debt Securities,
Stock Purchase Contracts (as defined below), Warrants or Rights (as defined below) in any combination (the “Units”);
(vii) purchase contracts for the purchase of Common Stock or other securities (the “Stock Purchase Contracts”), and
(viii) rights to purchase shares of Common Stock (“Rights”); and (b) the resale from time to time by certain selling
stockholders of the Company of up to 2,820,000 shares of Common Stock, which includes 320,000 shares of Common Stock that were acquired
by TurnMark Partners, L.P. (“TurnMark”) through open market purchases (collectively, the “Selling Stockholder
Securities”). The Common Stock, Preferred Stock, Debt Securities, Warrants, Units, Stock Purchase Contracts and Rights are collectively
referred to herein as the “Securities.”
The Securities may be offered
separately or together with other Securities, in one or more series, and in amounts, at prices and on terms to be set forth in the prospectus
and one or more supplements to the prospectus (collectively, the “Prospectus”) constituting a part of the Registration
Statement.
This opinion letter is being
delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K.
The Senior Debt Securities
are to be issued under an indenture substantially in the form filed as Exhibit 4.2 to the Registration Statement, with appropriate
insertions (the “Senior Indenture”), to be entered into by the Company and a trustee to be named by the Company (the
“Senior Trustee”). The Subordinated Debt Securities are to be issued under an indenture substantially in the form filed
as Exhibit 4.3 to the Registration Statement, with appropriate insertions (the “Subordinated Indenture”), to be
entered into by the Company and a trustee to be named by the Company (the “Subordinated Trustee”). Each series of Preferred
Stock is to be issued under the Restated Certificate of Incorporation, as amended, of the Company (the “Certificate of Incorporation”)
and one or more statements of designations (each, a “Certificate of Designations”) to be approved by the Board of Directors
of the Company or a committee thereof and filed with the Office of the Secretary of State of the State of Delaware. The Common Stock is
to be issued under the Certificate of Incorporation. The Warrants are to be issued under warrant agreements (including a form of certificate
evidencing the Warrants) in a form to be filed and incorporated into the Registration Statement (the “Warrant Agreements”).
The Senior Indenture, any supplements thereto, the Subordinated Indenture, any supplements thereto, the Certificate of Incorporation,
each Certificate of Designations, each Deposit Agreement and each Warrant Agreement are referred to herein individually as a “Governing
Document” and collectively as the “Governing Documents.”
As part of the corporate actions
taken and to be taken (the “Corporate Proceedings”) in connection with the issuance of any Securities to be issued
and sold from time to time under the Registration Statement, the Board of Directors of the Company (the “Board of Directors”),
or a committee thereof or officers of the Company to whom such authority has been properly delegated by the Board of Directors, will be
required to, before such Securities are issued under the Registration Statement, duly authorize the issuance.
We have examined or are otherwise
familiar with the Certificate of Incorporation, and the Amended and Restated ByLaws of the Company (the “Bylaws”),
the Registration Statement, the form of Senior Indenture, the form of Subordinated Indenture and such other documents, records and instruments
as we have deemed necessary or appropriate for the purposes of this opinion.
Based on and subject to the
foregoing, we are of the opinion that:
| 1. | upon (a) the completion of all required Corporate Proceedings and (b) the due authorization, execution
and delivery of the Senior Indenture by the Company and the Senior Trustee, the Senior Indenture will be a valid and binding obligation
of the Company; |
| 2. | upon (a) the completion of all required Corporate Proceedings and (b) the due authorization, execution
and delivery of the Subordinated Indenture by the Company and the Subordinated Trustee, the Subordinated Indenture will be a valid and
binding obligation of the Company; |
| 3. | with respect to any Senior Debt Securities, upon (a) the due authorization, execution and delivery
by the Company and the Senior Trustee of the Senior Indenture and any supplement thereto with respect to such series of Senior Debt Securities,
(b) the completion of all required Corporate Proceedings, (c) the due execution and delivery by the Company of such Senior Debt
Securities, (d) the due authentication by the Senior Trustee of such Senior Debt Securities pursuant to the Senior Indenture, (e)
the payment of the agreed upon consideration therefor in accordance with any relevant agreements and the Corporate Proceedings, and (f) in
the case of Senior Debt Securities issuable upon conversion, exercise or settlement of, or constituting a component of, any other Securities,
completion of all actions in respect of such other Securities referred to in the applicable paragraph hereof, such Senior Debt Securities
will be valid and binding obligations of the Company; |
| 4. | with respect to any Subordinated Debt Securities, upon (a) the due authorization, execution and delivery
by the Company and the Subordinated Trustee of the Subordinated Indenture and any supplement thereto with respect to such series of Subordinated
Debt Securities, (b) the completion of all required Corporate Proceedings, (c) the due execution and delivery by the Company of such
Subordinated Debt Securities, (d) the due authentication by the Subordinated Trustee of such Subordinated Debt Securities pursuant
to the Subordinated Indenture, (e) the payment of the agreed upon consideration therefor has been paid in accordance with any relevant
agreements and the Corporate Proceedings, and (f) in the case of Subordinated Debt Securities issuable upon conversion, exchange,
exercise or settlement of, or constituting a component of, any other Securities, completion of all actions in respect of such other Securities
referred to in the applicable paragraph hereof, such Subordinated Debt Securities will be valid and binding obligations of the Company; |
| 5. | with respect to any Preferred Stock, upon (a) the completion of all required Corporate Proceedings with
respect to the issuance and terms of such Preferred Stock, (b) the due authorization, execution, acknowledgment, delivery and filing with,
and recording by, the Office of the Secretary of State of the State of Delaware of a Certificate of Designations in respect of such Preferred
Stock, (c) unless issued without certificates, the due execution, registration of issuance and delivery of certificates evidencing such
Preferred Stock (or, in the case of shares of Preferred Stock issued without certificates, the due registration of issued and constructive
delivery through book entry of such shares), (d) the payment of the agreed upon consideration therefor in accordance with any relevant
agreements and the Corporate Proceedings, and (e) in the case of Preferred Stock represented by, or issuable upon conversion, exchange,
exercise or settlement of, or constituting a component of, any other Securities, completion of all actions in respect of such other Securities
referred to in the applicable paragraph hereof, such Preferred Stock will be duly and validly issued, fully paid and nonassessable; |
| 6. | with respect to any Common Stock, upon (a) the completion of all required Corporate Proceedings,
(b) the due execution, registration of issuance and delivery of certificates representing such Common Stock (or, in the case of shares
of Common Stock issued without certificates, the due registration of issuance and constructive delivery through book entry of such shares),
(c) the payment of the agreed upon consideration therefor in accordance with any relevant agreements and the Corporate Proceedings, and
(d) in the case of Common Stock represented by, or issuable upon conversion, exchange or settlement of, or constituting a component
of, any other Securities, completion of all actions in respect of such other Securities referred to in the applicable paragraph hereof,
such Common Stock will be duly and validly issued, fully paid and nonassessable; and |
| 7. | with respect to any Warrants, upon (a) the completion of all required Corporate Proceedings, (b) the
due authorization, execution and delivery by the Company and the warrant agent of the Warrant Agreement pursuant to which such Warrants
are to be issued, (c) the due execution, issuance and delivery of warrant certificates evidencing such Warrants pursuant to such Warrant
Agreement, countersigned by the warrant agent pursuant to such Warrant Agreement, (d) the payment of the agreed upon consideration therefor
in accordance with the Warrant Agreement and any other relevant agreements and the Corporate Proceedings, and (e) in the case of Warrants
issued upon conversion, exchange, exercise or settlement of, or constituting a component of, any other Securities, completion of all actions
in respect of such Securities referred to in the applicable paragraph hereof, such Warrant Agreement will constitute a valid and binding
obligation of the Company and the warrant certificates evidencing such Warrants will be valid and binding obligations of the Company and
will entitle the holders thereof to the rights specified in such Warrant Agreement. |
| 8. | The Selling Stockholder Securities are validly issued, fully paid and nonassessable. |
The foregoing opinions are
subject to the limitation that the validity, binding effect or enforceability of the provisions of any agreement or instrument is limited
by (i) applicable bankruptcy, insolvency, reorganization, assignment for the benefit of creditors, moratorium, fraudulent conveyance,
fraudulent transfer, voidable transaction, receivership and other laws of general application affecting the enforcement of creditors’
rights, (ii) general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith, fair
dealing and the possible unavailability of specific performance, injunctive relief or other equitable remedies, whether considered in
a proceeding at law or in equity, (iii) public policy considerations that may limit the rights of parties to obtain specific remedies
or enforce specific terms, and (iv) governmental authority to limit, delay or prohibit the making of payments outside the United
States. We have also assumed that, at the time of the initial issuance of the portion of the Selling Stockholder Securities Shares acquired
by TurnMark through open market purchases, such shares were issued and sold by the Company pursuant to an effective registration statement
under the Securities Act.
The foregoing opinions assume
that (a) the Registration Statement and any amendments relating thereto shall have become effective under the Securities Act and
will continue to be effective, (b) the Company will remain duly organized, validly existing and in good standing under the laws of
the State of Delaware, (c) at the time any Securities or Governing Documents are authorized, issued, executed, authenticated, acknowledged,
delivered or filed (as the case may be), there will not have occurred any change in the law or in the Certificate of Incorporation or
Bylaws affecting the authorization, issuance, execution, authentication, acknowledgement, delivery, filing, validity or enforceability
of such Securities or Governing Documents, and no relevant Corporate Proceedings will have been modified or rescinded, (d) none of
the particular terms of any Securities or Governing Documents established after the date hereof will violate, or be void or voidable under,
any applicable law, (e) neither the authorization, issuance, execution, authentication, acknowledgement, delivery or filing of any
Securities or Governing Documents, nor the compliance by the Company with the terms of such Securities or Governing Documents, will result
in a violation of or default under any agreement or instrument then binding upon the Company or any order of any court or governmental
body having jurisdiction over the Company then in effect, (f) the Securities will be issued in accordance with, and in compliance
with any limitations on issuance contained in, the Corporate Proceedings related thereto, (g) the Company shall have received legally
sufficient consideration for all Securities, (h) each party to any Securities or Governing Documents (other than the Company) will
have duly authorized, executed and delivered such agreements or instruments and complied with all legal requirements pertaining to its
status as such status relates to the right to enforce such agreements or instruments against the Company and will have satisfied those
legal requirements applicable to it to the extent necessary to make such agreements or instruments enforceable against it, (i) the
Senior Indenture and the Subordinated Indenture will have been qualified under the Trust Indenture Act of 1939, as amended, (j) the
terms of the Securities will be established in conformity with the applicable Governing Documents and the Securities will be issued within
the limits of the then remaining authorized but unreserved and unissued amounts of such Securities under the Governing Documents, (k) a
prospectus supplement and any other offering material describing each class or series of Securities offered pursuant to the Registration
Statement, to the extent required by applicable law, will be timely filed with the Commission, (l) any Securities issued upon conversion,
exchange or exercise of any other Securities will have been duly authorized and reserved for issuance (in each case, within the limits
of the then remaining authorized but unreserved and unissued amounts of such Securities), and any issuance of such Securities will be
effected in accordance with the terms and conditions set forth in such other Securities and the Governing Documents related thereto, (m) all
certificates evidencing any Securities will be in the form required by law and approved for issuance by the Company, (n) any legally required
consents, approvals, authorizations and other orders of the Commission and any other regulatory authorities will be obtained, (o) the
Company will comply with all applicable notice requirements regarding uncertificated shares provided in the Delaware General Corporation
Law, and (p) the Securities will be duly registered on the books of the transfer agent and registrar thereof in the name and on behalf
of the holders thereof.
We
have relied upon certificates of public officials as to the accuracy of all matters addressed therein and, with respect to certain factual
matters, upon certificates of and information provided by officers and employees of the Company as to the accuracy of such factual matters,
in each case without independent verification thereof or other investigation. We have assumed, without investigation, the following: (a) the
genuineness of signatures appearing upon certifications, documents and proceedings, (b) each document submitted to us for review
is accurate and complete, each such document that is an original is authentic and each such document that is a copy conforms to an authentic
original, (c) the legal capacity of natural persons who are involved on behalf of the Company to enter into and perform the referenced
instrument or agreement or to carry out their role in the transactions contemplated thereby, (d) the
truth, accuracy and completeness of the information, representations and warranties contained in the documents, instruments, certificates
and records we have reviewed, (e) the absence of any undisclosed modifications to the agreements and instruments reviewed by us,
(f) that New York law has or will be chosen to govern the Senior Indenture, the Subordinated Indenture, each Deposit Agreement
and each Warrant Agreement, and all Securities issued thereunder and/or certificates evidencing such Securities.
Without limiting any other
qualifications set forth herein, the opinions expressed herein are subject to the effect of generally applicable laws that (a) provide
for the enforcement of oral waivers or modifications where a material change of position in reliance thereon has occurred or provide that
a course of performance may operate as a waiver, (b) limit the enforcement of provisions of instruments or agreements that purport
to require waiver of the obligations of good faith, fair dealing, diligence and reasonableness, (c) limit the availability of a remedy
under certain circumstances where another remedy has been elected, (d) limit the enforceability of provisions releasing, exculpating
or exempting a party from, or requiring indemnification of or contribution to a party for, liability for its own action or inaction, to
the extent the action or inaction involves negligence, recklessness, willful misconduct or unlawful conduct or insofar as such provisions
otherwise contravene public policy, (e) may, where less than all of an instrument or agreement may be unenforceable, limit the enforceability
of the balance of the instrument or agreement to circumstances in which the unenforceable portion is not an essential part of the agreed
exchange, (f) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ fees
and other costs, (g) may permit a party who has materially failed to render or offer performance required by a contract to cure that
failure unless either permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance
or it is important under the circumstances to the aggrieved party that performance occur by the date stated in the instrument or agreement,
(h) may require mitigation of damages, (i) may limit the enforceability of certain waivers, and (j) provide a time limitation after
which a remedy may not be enforced, including statutes of limitation and statutes of repose.
Although Debt Securities may
be denominated in currencies or composite currencies other than the United States dollar, we express no opinion as to whether a court
would award a judgment in a currency or composite currency other than United States dollars. Further, we express no opinion with respect
to the enforceability of any provision specifying rates of exchange for, or requiring indemnity against loss in, converting into a specified
currency or composite currency the proceeds or amount of a court judgment in another currency.
Our opinions set forth herein
are limited to the laws of the States of Delaware and New York, and we express no opinion as to the effect of any other laws.
This opinion is rendered as
of the date first written above and is expressly limited to the matters set forth above, and we render no opinion, whether by implication
or otherwise, as to any other matters relating to the Company, the Securities or the Governing Documents.
We hereby consent to the filing
of this opinion as an exhibit to the Registration Statement and to being named in the Registration Statement under the caption “Legal
Matters” with respect to the matters stated therein without implying or admitting that we are “experts” within the meaning
of the Securities Act, or other rules and regulations of the Commission issued thereunder with respect to any part of the Registration
Statement, including this exhibit.
|
Very truly yours, |
|
|
|
FAEGRE DRINKER BIDDLE & REATH LLP |
|
|
|
|
|
By: |
/s/ Jonathan R. Zimmerman |
|
|
Jonathan R. Zimmerman, Partner |
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 of our report dated March 9, 2023 with respect to the audited financial statements
of AudioEye, Inc. for the years ended December 31, 2022 and 2021, included in AudioEye, Inc.’s Annual Report on Form 10-K for the
year ended December 31, 2022, filed with the Securities and Exchange Commission.
We also consent to the references
to us under the heading “Experts” in such Registration Statement.
/s/
MaloneBailey, LLP |
|
www.malonebailey.com |
|
Houston,
Texas |
|
February
7, 2024 |
|
Exhibit 107
Calculation of Filing Fee Tables
FORM S-3
(Form Type)
AudioEye, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
|
Security
Type |
Security
Class
Title |
Fee
Calculation
Rule or Carry Forward Rule |
Amount
Registered |
Proposed
Maximum
Offering
Price Per
Unit |
Maximum
Aggregate
Offering
Price(1) |
Fee
Rate |
Amount
of
Registration
Fee(6) |
Carry
Forward Form Type |
Carry
Forward File Number |
Carry
Forward Initial Effective Date |
Filing Fee
Previously Paid
In Connection
with Unsold
Securities to be
Carried Forward |
Newly
Registered Securities |
Fees
to Be Paid |
Equity
Other Debt
Other Unallocated
(Universal
Shelf) |
Common Shares,
par value $0.00001 per share
Preferred
Shares, par value $0.00001 per share
Senior Debt
Securities
Subordinated
Debt Securities
Share Purchase
Contracts
Warrants
Rights
Units (3) |
457(o) |
(1) |
(2) |
$16,695,983
(1)(6) |
0.0001476 |
$2,465 |
|
|
|
|
|
Equity |
Common
Shares, par value $0.001(4) |
457(c) |
820,000 |
$5.27
(5) |
$4,321,400 |
0.0001476 |
$638 |
|
|
|
|
Carry
Forward Securities |
Carry
Forward Securities |
Equity
Other Debt
Other Unallocated
(Universal Shelf) |
Common Shares,
par value $0.00001 per share
Preferred
Shares, par value $0.00001 per share
Senior Debt
Securities
Subordinated
Debt Securities
Share Purchase
Contracts
Warrants
Rights
Units |
415(a)(6) |
(6) |
|
$133,304,017 |
|
|
S-3 |
333-252864 |
February
11, 2021 |
$14,544 |
|
Total
Offering Amounts |
|
$154,321,400 |
0.0001476 |
$3,103 |
|
|
|
|
|
Total
Fees Previously Paid |
|
|
|
— |
|
|
|
|
|
Total
Fee Offsets |
|
|
|
— |
|
|
|
|
|
Net
Fee Due |
|
|
|
$3,103 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
An indeterminate number of securities or aggregate principal amount, as the case may be, of common stock and preferred stock, such indeterminate principal amount of debt securities, such indeterminate number of purchase contracts to purchase common stock, preferred stock or debt securities, such indeterminate number of warrants to purchase common stock, preferred stock or debt securities, such indeterminate number of rights and such indeterminate number of units (the “Universal Shelf Securities”), as shall have an aggregate initial offering price not to exceed $150,000,000. If any debt securities are issued at an original issue discount, then the offering price of such debt securities shall be in such greater principal amount as shall result in an aggregate offering price not to exceed $150,000,000, less the aggregate offering price of any securities previously issued hereunder. Any securities issued hereunder may be sold separately or as units with other securities issued hereunder. The proposed maximum initial offering price per unit will be determined, from time to time, by the registrant in connection with the issuance by the registrant of the securities registered hereunder. The securities registered also include such indeterminate amounts and numbers of debt securities, common stock and preferred stock as may be issuable upon conversion, redemption, exchange, exercise or settlement of any securities registered hereunder, including under any applicable antidilution provisions. Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall be deemed to cover any additional number of securities as may be offered or issued from time to time upon stock splits, stock dividends, recapitalizations or similar transactions. |
(2) |
The proposed maximum aggregate offering price per unit will be determined from time to time by the Registrant in connection with the sale and issuance by the Registrant of the securities registered hereunder and is not specified as to each class of security pursuant to General Instruction II.D. of Form S-3 under the Securities Act. |
(3) |
Any securities registered under the registration statement may be sold separately or as units with other securities registered under the registration statement. |
(4) |
Shares to be offered for sale by selling shareholders. |
(5) |
The proposed maximum offering price per share and in the aggregate are based on $5.27, which is the average of the high and low sale prices of the registrant’s common stock, as reported on The Nasdaq Stock Market on February 1, 2024, which date is within five business days prior to filing this registration statement. |
(6) |
Pursuant to Rule 415(a)(6) under the Securities Act, the securities
registered pursuant to this registration statement include $133,304,017 of unsold securities (the “Unsold Securities”) previously
registered pursuant to the registration statement on Form S-3 (File No. 333-252864), which initially became effective upon filing with
the U.S. Securities and Exchange Commission on February 11, 2021 (the “Prior Registration Statement”). The registrant paid
filing fees for the Unsold Securities in an aggregate amount of $14,544. Such aggregate amount of filing fees associated with the offering
of the Unsold Securities is hereby carried forward to be applied to the Unsold Securities registered hereunder, and no additional filing
fee is due with respect to the Unsold Securities in connection with the filing of this registration statement. To the extent that, after
the filing date hereof and prior to the effectiveness of this registration statement, the registrant sells any Unsold Securities pursuant
to the Prior Registration Statement, the registrant will identify in a pre-effective amendment to this registration statement the updated
number of Unsold Securities from the Prior Registration Statement to be included in this registration statement pursuant to Rule 415(a)(6)
and the updated amount of new securities to be registered on this registration statement. Pursuant to Rule 415(a)(6), the offering of
securities under the Prior Registration Statement will be deemed terminated as of the date of effectiveness of this registration statement.
|
Table 2: Fee Offset Claims and Sources
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Registrant
or Filer
Name |
Form
or
Filing
Type |
File
Number |
Initial
Filing
Date |
Fee Offset
Claimed |
Security
Type
Associated
with Fee
Offset
Claimed |
Security
Title
Associated
with Fee
Offset
Claimed |
Unsold
Securities
Associated
with Fee
Offset
Claimed |
Unsold
Aggregate
Offering
Amount
Associated
with Fee
Offset
Claimed |
Fee Offset
Claims |
|
|
|
|
|
|
|
|
|
Table 3: Combined Prospectuses
Security Type |
Security Class Title |
Amount of Securities
Previously Registered(7) |
Maximum Aggregate
Offering Price of
Securities Previously
Registered |
Form
Type |
File
Number |
Initial
Effective
Date |
Equity |
Common stock |
2,000,000(8) |
$46,860,000(9) |
S-3 |
333-252864 |
February 11, 2021 |
(7) |
Pursuant to Rule 416 under the Securities Act, the amount of securities previously registered includes such indeterminate number of additional securities that may become issuable as a result of any stock dividend, stock split, recapitalization or other similar transaction. |
(8) |
Shares to be offered for sale by selling shareholders. |
(9) |
Estimated solely for the purpose of calculating the registration fee under Rule 457(c) of the Securities Act based on the average of the high and low price per share for the Company’s common stock on February 2, 2021, as reported by The Nasdaq Capital Market. |
AudioEye (NASDAQ:AEYE)
Historical Stock Chart
From May 2024 to Jun 2024
AudioEye (NASDAQ:AEYE)
Historical Stock Chart
From Jun 2023 to Jun 2024