As filed with the Securities and Exchange Commission
on December 13, 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
ENERGOUS CORPORATION
(Exact name of registrant as specified in its
charter)
| Delaware |
|
46-1318953 |
|
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer
Identification No.) |
3590 North First Street, Suite 210
San Jose, California 95134
(408) 963-0200
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
Mallorie Burak
Chief Executive Officer and Chief Financial
Officer
3590 North First Street, Suite 210
San Jose, California 95134
(408) 963-0200
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
David Dedyo
Ned A. Prusse
Perkins Coie LLP
505 Howard Street, Suite 1000
San Francisco, California 94105
(415) 344-7000
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, 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 earliest effective registration statement for the same offering: ¨
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under
the Securities Act, check the following box. ¨
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I. D. filed to register additional securities or additional classes of securities pursuant
to Rule 413(b) under the Securities Act, check the following box. ¨
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions
of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging
growth company” in Rule 12b-2 of the Exchange Act. (Check one):
| Large accelerated filer |
¨ |
Accelerated filer |
¨ |
| |
|
|
|
| Non-accelerated filer |
x |
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. ¨
The registrant
hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with
Section 8 (a) of the Securities Act or until the registration statement shall become effective on such date as the U.S. Securities
and Exchange Commission (the “SEC”), acting pursuant to said Section 8 (a), may determine.
Pursuant to Rule 415(a)(6), the registrant
is registering on this registration statement $80,000,000 of unsold securities which remain unsold as of the date hereof (collectively,
the “Unsold Securities”) previously registered by the registrant’s registration statement on Form S-3 (File No. 261087),
which was filed with the SEC on November 15, 2021 and declared effective on December 16, 2021 (the “Prior Registration
Statement”). The aggregate filing fee paid in connection with such portion of the Unsold Securities was $7,416. Pursuant to Rule 415(a)(6) under
the Securities Act, (i) the registration fee applicable to such portion of the Unsold Securities is being carried forward to this
registration statement and will continue to be applied to such portion of the Unsold Securities, and (ii) the offering of the Unsold
Securities registered on the Prior Registration Statement will be deemed terminated as of the date of effectiveness of this registration
statement. If the registrant sells any of the Unsold Securities being carried forward to this registration statement pursuant to the Prior
Registration Statement after the date of the initial filing, and prior to the date of effectiveness, of this registration statement, the
registrant will file a pre-effective amendment to this registration statement, which will reduce the amount of Unsold Securities included
on this registration statement.
The information in this prospectus is not complete
and may be changed. We may not sell these securities until the U.S. Securities and Exchange Commission declares our registration statement
effective. This prospectus is not an offer to sell these securities and we are not soliciting offers to buy these securities in any state
or jurisdiction where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED DECEMBER 13, 2024
PROSPECTUS
$80,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
We may offer and sell the securities described
in this prospectus from time to time in one or more offerings. The specific terms of the securities, including their offering prices,
will be contained in one or more supplements to this prospectus. You should read this prospectus and any prospectus supplement carefully
before you invest. The securities may be sold to or through one or more underwriters, dealers or agents, or directly to investors, on
a continuous or delayed basis. See “Plan of Distribution.”
Our
common stock is traded on the Nasdaq Capital Market under the symbol “WATT.” On December 12, 2024, the last
reported sales price of our common stock on the Nasdaq Capital Market was $0.311 per share.
As of December 12, 2024, the aggregate market
value of our outstanding common stock held by non-affiliates (“public float”) was approximately $6.2 million based on 10,126,629
shares of outstanding common stock held by non-affiliates as of such date, at a price of $0.615 per share on October 29, 2024, which was
the highest closing sale price of our common stock on the Nasdaq Capital Market within 60 days of the filing date of this prospectus.
Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities registered on the registration statement,
of which this prospectus is a part, in a public primary offering with a value exceeding more than one-third of our public float in any
12-month period unless our public float subsequently rises to $75.0 million or more. We have sold $2.06 million of securities pursuant
to General Instruction I.B.6. of Form S-3 during the 12 calendar months prior to and including the date of this prospectus.
Investing in our securities involves risks.
See “Risk Factors” on page 3 of this prospectus, and any applicable prospectus supplement, and in the documents that
are incorporated by reference herein.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus.
Any representation to the contrary is a criminal offense.
The date of this prospectus is
, 2024.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement
on Form S-3 under the Securities Act of 1933, as amended (the “Securities Act”), that we filed with the Securities and
Exchange Commission (“SEC”) using the “shelf” registration process. Under this shelf registration process, we
may offer and sell any combination of the securities described in this prospectus in one or more offerings up to a total dollar amount
of $80,000,000. This prospectus provides you with a general description of the securities we may offer. Each time we offer the securities
described in this prospectus, we will provide you with a prospectus supplement that will describe the specific amounts, prices and terms
of the securities being offered. We may also authorize one or more free writing prospectuses to be provided to you that may contain material
information relating to these offerings. The prospectus supplement or free writing prospectuses may also add, update or change information
contained in this prospectus with respect to that offering. If there is any inconsistency between the information in this prospectus and
the applicable prospectus supplement or free writing prospectus, you should rely on the prospectus supplement or free writing prospectus,
as applicable. This prospectus does not contain all the information provided in the registration statement filed with the SEC. You should
carefully read both this prospectus and any prospectus supplement (and any applicable free writing prospectuses) together with the additional
information described below under “Where You Can Find More Information” and “Information Incorporated By Reference”
before you make an investment decision.
We have not authorized anyone to provide any information
other than that contained or incorporated by reference in this prospectus or in any prospectus supplement or free writing prospectus prepared
by or on behalf of us or to which we have referred you. We take no responsibility for, and can provide no assurance as to the reliability
of, any other information that others may give you.
You should assume that the information appearing
in this prospectus and the applicable prospectus supplement to this prospectus is 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 we indicate
otherwise. Our business, financial condition, results of operations and prospects may have changed since those dates. Any statement made
in this prospectus or in a document incorporated or deemed to be incorporated by reference in this prospectus will be deemed to be modified
or superseded for purposes of this prospectus to the extent that a statement contained in a prospectus supplement or in any other subsequently
filed document that is also incorporated or 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.
See “Information Incorporated By Reference.”
This prospectus and any accompanying prospectus
supplements may include trademarks, service marks and trade names owned by us or other companies. All trademarks, service marks and trade
names included in this prospectus or any accompanying prospectus supplement are the property of their respective owners.
Unless the context otherwise indicates, references
in this prospectus to “we,” “us,” “our,” the “Company” and “Energous” refer
to Energous Corporation, a Delaware corporation. The term “you” refers to a prospective investor.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, any prospectus supplement and
the documents incorporated by reference herein and therein contain “forward-looking statements” within the meaning of Section 27A
of the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that
are intended to be covered by the “safe harbor” created by those sections. Forward-looking statements, which are based on
certain assumptions and describe our future plans, strategies and expectations, can generally be identified by the use of forward-looking
terms such as “believe,” “expect,” “may,” “will,” “would,” “should,”
“could,” “seek,” “intend,” “plan,” “continue,” “estimate,” “anticipate”
or other comparable terms. All statements other than statements of historical facts included in this report regarding our strategies,
prospects, financial condition, operations, costs, plans and objectives are forward-looking statements. Examples of forward-looking statements
include, among others, statements we make regarding proposed business strategy; market opportunities; regulatory approval; expectations
for current and potential business relationships; and expectations for revenues, liquidity cash flows and financial performance, the anticipated
results of our research and development efforts, the timing for receipt of required regulatory approvals and product launches; and the
impact of geopolitical, macroeconomic, health and other world events. Forward-looking statements are neither historical facts nor assurances
of future performance. Instead, they 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. Forward-looking statements
relate to the future and are subject to inherent uncertainties, risks and changes in circumstances that are difficult to predict and generally
outside of our control, so actual results and financial condition may differ materially from those indicated in the forward-looking statements.
Important factors that could cause our actual
results and financial condition to differ materially from those indicated in the forward-looking statements include, among others: our
ability to develop commercially feasible technology; timing of customer implementations of our technology in consumer products; timing
and receipt of regulatory approvals in the United States and internationally; our ability to find and maintain development partners; market
acceptance of our technology; competition in our industry; our ability to protect our intellectual property; competition; and other risks
and uncertainties described in Part I, Item 1A, “Risk Factors,” in our Annual Report on Form 10-K for the year ended December 31, 2023, or in other periodic and current reports we file with the SEC, as well as those discussed in this prospectus,
any prospectus supplement and the documents incorporated by reference herein and therein. You are cautioned not to place undue reliance
on these forward-looking statements, which speak only as of the date of this prospectus or, in the case of documents referred to or incorporated
by reference, the date of those documents.
All subsequent written or oral forward-looking
statements attributable to us or any person acting on our behalf are expressly qualified in their entirety by the cautionary statements
contained or referred to in this section. We do not undertake any obligation to release publicly any revisions to these forward-looking
statements to reflect events or circumstances after the date of this prospectus or to reflect the occurrence of unanticipated events,
except as may be required under applicable U.S. securities laws. If we do update one or more forward-looking statements, no inference
should be drawn that we will make additional updates with respect to those or other forward-looking statements.
RISK FACTORS
An investment in our securities involves risks.
You should carefully consider the risks described in the sections entitled “Risk Factors” in any prospectus supplement and
those set forth in documents incorporated by reference in this prospectus and any applicable prospectus supplement, as well as other information
in this prospectus and any applicable prospectus supplement, before purchasing any of our securities. Each of the risks described in these
sections and documents could materially and adversely affect our business, financial condition, results of operations and prospects, and
could result in a loss of your investment. Additional risks and uncertainties not known to us or that we deem immaterial may also impair
our business, financial condition, results of operations and prospects.
OUR COMPANY
We have developed scalable, over-the-air wireless
power networks (“WPN”) technology, consisting of semiconductor chipsets, software controls, hardware designs and antennas,
that enable radio frequency (“RF”) based charging for Internet of Things (“IoT”) devices. The WPN technology has
a broad spectrum of capabilities to enable the next generation of wireless power networks, delivering power and data in a seamless device
portfolio, enabling unprecedented levels of visibility, control, and intelligent business automation. This includes near field and at-a-distance
wireless charging with multiple power levels at various distances. Our wireless power transmitter and receiver technologies deliver continuous
access to wireless power, helping drive a new generation of battery-free devices for asset and inventory tracking and management –
from retail sensors, electronic shelf labels, and asset trackers, to air quality monitors, motion detectors, and more.
We believe
our technology is innovative in its approach, in that we are developing solutions that charge IoT devices using RF technology. To date,
we have developed and released to production multiple transmitters and receivers, including prototypes and partner production designs.
The transmitters vary based on form, factor and power specifications and frequencies, while the receivers are designed to support a myriad
of wireless charging applications, including:
| Device Type |
Application |
| RF Tags |
Cold Chain, Asset Tracking, Medical IoT |
| IoT Sensors |
Cold Chain, Logistics, Asset Tracking |
| Electronic Shelf Labels |
Retail and Industrial IoT |
The first WPN end product
featuring our technology entered the market in 2019. We started shipping our first at-a-distance wireless PowerBridges for commercial
IoT applications and proofs of concept in the fourth quarter of 2021, and we expect additional wireless power enabled products to be released
as we move our business forward.
We were incorporated in Delaware on October 30,
2012 under the name DvineWave Inc. Our principal executive offices are located at 3590 North First Street, Suite 210, San Jose, California
95134, and our telephone number is (408) 963-0200. We maintain an Internet website at www.energous.com. Information contained on
our website is not incorporated by reference in this prospectus and you should not consider information contained on our website as part
of this prospectus or any applicable prospectus supplement.
USE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus
supplement, we intend to use the net proceeds from the sale of any securities offered by us under this prospectus for general and administrative
expenses and other general corporate purposes, research and product development efforts, potential acquisition of complementary technologies
and companies, regulatory activities, business development and support functions. We will retain broad discretion over the allocation
of net proceeds from the sale of any securities offered by us.
DESCRIPTION OF CAPITAL STOCK
The following description of our capital stock
is intended as a summary only. This description is based upon, and is qualified by reference to, our second amended and restated certificate
of incorporation, as amended (“certificate of incorporation”), our amended and restated bylaws (“bylaws”), and
the applicable provisions of the General Corporation Law of the State of Delaware (“DGCL”). This summary is not complete.
You should read our certificate of incorporation and bylaws, each of which is filed as an exhibit to the registration statement of which
this prospectus forms a part, for the provisions that are important to you.
Authorized and Outstanding Capital Stock
Our authorized capital stock consists of 200,000,000
shares of common stock, $0.00001 par value per share, and 10,000,000 shares of preferred stock, $0.00001 par value per share. As of December 12,
2024, there were 10,138,760 shares of common stock and no shares of preferred stock outstanding.
Common Stock
Holders of our common stock are entitled to such
dividends as may be declared by our board of directors out of funds legally available for such purpose. The shares of common stock are
neither redeemable nor convertible. Holders of common stock have no preemptive or subscription rights to purchase any of our securities.
Each holder of our common stock is entitled to
one vote for each such share outstanding in the holder’s name. No holder of common stock is entitled to cumulate votes in voting
for directors. In the event of our liquidation, dissolution or winding up, the holders of our common stock are entitled to receive pro
rata our assets, which are legally available for distribution, after payments of all debts and other liabilities. All of the outstanding
shares of our common stock are fully paid and non-assessable.
Preferred Stock
Our board of directors is authorized, subject
to limitations prescribed by Delaware law, to issue from time to time up to 10,000,000 shares of preferred stock in one or more series,
to establish from time to time the number of shares to be included in each series and to fix the designation, powers, preferences and
rights of the shares of each series and any of their qualifications, limitations or restrictions, in each case without further vote or
action by our stockholders. Our board of directors is also able to increase or decrease the number of shares of any series of preferred
stock, but not below the number of shares of that series then outstanding, without any further vote or action by our stockholders. Our
board of directors may be able to authorize the issuance of preferred stock with voting or conversion rights that could adversely affect
the voting power or other rights of the holders of our common stock. The issuance of preferred stock, while providing flexibility in connection
with possible acquisitions and other corporate purposes, could, among other things, have the effect of delaying, deferring or preventing
a change in control of our company and might adversely affect the market price of our common stock and the voting and other rights of
the holders of our common stock.
Anti-Takeover Effects of Certain Provisions of Delaware Law and
Our Charter Documents
The following is a summary of certain provisions
of Delaware law, our certificate of incorporation and our bylaws. This summary does not purport to be complete and is qualified in its
entirety by reference to the corporate law of Delaware and our certificate of incorporation and bylaws.
Effect of Delaware Anti-Takeover Statute.
We are subject to Section 203 of the Delaware
General Corporation Law, an anti-takeover law. In general, Section 203 prohibits a Delaware corporation from engaging in any business
combination (defined below) with any interested stockholder (defined below) for a period of three years following the date that the stockholder
became an interested stockholder, unless:
| · | prior to that date, the board of directors of the corporation approved either the business combination
or the transaction that resulted in the stockholder becoming an interested stockholder; |
| · | upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder,
the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced,
excluding for purposes of determining the number of shares of voting stock outstanding (but not the voting stock owned by the interested
stockholder) those shares owned by persons who are directors and officers and by excluding employee stock plans in which employee participants
do not have the right to determine whether shares held subject to the plan will be tendered in a tender or exchange offer; or |
| · | on or subsequent to that date, the business combination is approved by the board of directors of the corporation
and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66 2/3%
of the outstanding voting stock that is not owned by the interested stockholder. |
Section 203 defines “business combination”
to include:
| · | any merger or consolidation involving the corporation and the interested stockholder; |
| · | any sale, transfer, pledge or other disposition of 10% or more of the assets of the corporation involving
the interested stockholder; |
| · | subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation
of any stock of the corporation to the interested stockholder; |
| · | subject to limited exceptions, any transaction involving the corporation that has the effect of increasing
the proportionate share of the stock of any class or series of the corporation beneficially owned by the interested stockholder; or |
| · | the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or
other financial benefits provided by or through the corporation. |
In general, Section 203 defines an “interested
stockholder” as any entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation, or who
beneficially owns 15% or more of the outstanding voting stock of the corporation at any time within a three-year period immediately prior
to the date of determining whether such person is an interested stockholder, and any entity or person affiliated with or controlling or
controlled by any of these entities or persons.
Our Charter Documents
Our certificate of incorporation and bylaws include
provisions that may have the effect of discouraging, delaying or preventing a change in control or an unsolicited acquisition proposal
that a stockholder might consider favorable, including a proposal that might result in the payment of a premium over the market price
for the shares held by our stockholders. Certain of these provisions are summarized in the following paragraphs.
| · | Effects of Authorized but Unissued Common Stock. One of the effects of the existence of authorized but unissued common
stock may be to enable our board of directors to make more difficult or to discourage an attempt to obtain control of our Company by means
of a merger, tender offer, proxy contest or otherwise, and thereby to protect the continuity of management. If, in the due exercise of
its fiduciary obligations, the board of directors were to determine that a takeover proposal was not in our best interest, such shares
could be issued by the board of directors without stockholder approval in one or more transactions that might prevent or render more difficult
or costly the completion of the takeover transaction by diluting the voting or other rights of the proposed acquirer or insurgent stockholder
group, by putting a substantial voting block in institutional or other hands that might undertake to support the position of the incumbent
board of directors, by effecting an acquisition that might complicate or preclude the takeover, or otherwise. |
| · | Action by Written Consent. Our certificate of incorporation provides that our stockholders may not act by written consent. |
| · | Advanced Notice. Our bylaws provide that stockholders who wish to bring nominations or other business before an annual
meeting of the stockholders or a special meeting of the stockholders must provide us with notice of such proposed nomination or business
within specified time frames and must provide us with information regarding the potential nominee or proposal. |
| · | Blank Check Preferred Stock. As noted above, our certificate of incorporation allows our board of directors to fix the
designation, powers, preferences and rights of the shares of each series of preferred stock and any of their qualifications, limitations
or restrictions, in each case without further vote or action by our stockholders. |
| · | Bylaw Amendment. Our certificate of incorporation provides our board of directors the ability to amend our bylaws without
further vote or action by our stockholders. |
| · | Cumulative Voting. Our certificate of incorporation does not provide for cumulative voting in the election of directors,
which would allow holders of less than a majority of the stock to elect some directors. |
| · | Exclusive Venue. Our certificate of incorporation provides that unless the Company consents in writing to the selection
of an alternative forum, the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Company,
(ii) any action asserting a claim of breach of a fiduciary duty owed to the Company or the Company’s stockholders by any director,
officer or other employee of the Company, (iii) any action asserting a claim arising pursuant to any provision of the Delaware General
Corporation Law, or (iv) any action asserting a claim governed by the internal affairs doctrine shall be the Delaware Court of Chancery,
or if the Delaware Court of Chancery determines that it does not have subject matter jurisdiction, the U.S. District Court for the District
of Delaware or any court of the State of Delaware having subject matter jurisdiction regarding the matter. |
| · | Special Meeting of Stockholders. Our certificate of incorporation provides that a special
meeting of stockholders may only be called by the President, the Chief Executive Officer, or the board of directors at any time and for
any purpose or purposes as shall be stated in the notice of the meeting. |
| · | Vacancies. Our certificate of incorporation provides that all vacancies may be filled by
the affirmative vote of a majority of directors then in office, even if less than a quorum. |
Transfer Agent and Registrar
The transfer agent and registrar for our common
stock is Computershare Trust Company, N.A.
Listing
Our common stock is listed on the Nasdaq Capital
Market under the symbol “WATT.”
DESCRIPTION OF DEBT SECURITIES
We may issue debt securities from time to time
under this prospectus. We will set forth in an accompanying prospectus supplement a description of the debt securities that may be offered
under this prospectus. The applicable prospectus supplement and other offering material relating to such offering will describe the specific
terms relating to the series of debt securities being offered, including a description of the material terms of the indenture (and any
supplemental indentures) governing such series. These terms may include the following:
| · | the title of the series of the offered debt securities; |
| · | the price or prices at which the offered debt securities will be issued; |
| · | any limit on the aggregate principal amount of the offered debt securities; |
| · | the date or dates on which the principal of the offered debt securities will be payable; |
| · | the rate or rates (which may be fixed or variable) per year at which the offered debt securities will
bear interest, if any, or the method of determining the rate or rates and the date or dates from which interest, if any, will accrue;
|
| · | if the amount of principal, premium or interest with respect to the offered debt securities of the series
may be determined with reference to an index or pursuant to a formula, the manner in which these amounts will be determined; |
| · | the date or dates on which interest, if any, on the offered debt securities will be payable and the regular
record dates for the payment thereof; |
| · | the place or places, if any, in addition to or instead of the corporate trust office of the trustee, where
the principal, premium and interest with respect to the offered debt securities will be payable; |
| · | the period or periods, if any, within which, the price or prices of which, and the terms and conditions
upon which the offered debt securities may be redeemed, in whole or in part, pursuant to optional redemption provisions; |
| · | the terms on which we would be required to redeem or purchase the offered debt securities pursuant to
any sinking fund or similar provision, and the period or periods within which, the price or prices at which and the terms and conditions
on which the offered debt securities will be so redeemed and purchased in whole or in part; |
| · | the denominations in which the offered debt securities will be issued; |
| · | the form of the offered debt securities and whether the offered debt securities are to be issued in whole
or in part in the form of one or more global securities and, if so, the identity of the depositary for the global security or securities;
|
| · | the portion of the principal amount of the offered debt securities that is payable on the declaration
of acceleration of the maturity, if other than their principal amount; |
| · | if other than U.S. dollars, the currency or currencies in which the offered debt securities will be denominated
and payable, and the holders’ rights, if any, to elect payment in a foreign currency or a foreign currency unit other than that
in which the offered debt securities are otherwise payable; |
| · | whether the offered debt securities will be issued with guarantees and, if so, the terms of any guarantee
of the payment of principal and interest with respect to the offered debt securities; |
| · | any addition to, or modification or deletion of, any event of default or any covenant specified in the
indenture; |
| · | whether the offered debt securities will be convertible or exchangeable into other securities, and if
so, the terms and conditions upon which the offered debt securities will be convertible or exchangeable; |
| · | whether the offered debt securities will be senior or subordinated debt securities; |
| · | any trustees, authenticating or paying agents, transfer agents or registrars or other agents with respect
to the offered debt securities; and |
| · | any other specific terms of the offered debt securities. |
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of debt
securities, common stock, preferred stock or other securities. Warrants may be issued independently or together with debt securities,
common stock, preferred stock or other securities offered by any prospectus supplement and may be attached to or separate from any such
offered securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a bank
or trust company, as warrant agent, all as will be set forth in the prospectus supplement relating to the particular issue of warrants.
The warrant agent will act solely as our agent in connection with the warrants and will not assume any obligation or relationship of agency
or trust for or with any holders of warrants or beneficial owners of warrants. The summary of the terms of the warrants contained in this
prospectus is not complete and is subject to, and is qualified in its entirety to, all provisions of the applicable warrant agreement.
Reference is made to the prospectus supplement
relating to the particular issue of warrants offered pursuant to such prospectus supplement for the terms of and information relating
to such warrants, including, where applicable:
| · | the specific designation and aggregate number of, and the offering price at which we will issue, the warrants; |
| · | the currency or currency units in which the offering price, if any, and the exercise price are payable; |
| · | the date on which the right to exercise the warrants will begin and the date on which that right will
expire or, if you may not continuously exercise the warrants throughout that period, the specific date or dates on which you may exercise
the warrants; |
| · | whether the warrants are to be sold separately or with other securities as parts of units; |
| · | whether the warrants will be issued in definitive or global form or in any combination of these forms,
although, in any case, the form of a warrant included in a unit will correspond to the form of the unit and of any security included in
that unit; |
| · | a discussion of certain material U.S. federal income tax consequences applicable to the warrants; |
| · | the identity of the warrant agent for the warrants and of any other depositaries, execution or paying
agents, transfer agents, registrars or other agents; |
| · | the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants
on any securities exchange; |
| · | the designation and terms of any equity securities purchasable upon exercise of the warrants; |
| · | the designation, aggregate principal amount, currency and terms of any debt securities that may be purchased
upon exercise of the warrants; |
| · | if applicable, the designation and terms of the debt securities, preferred stock or common stock with
which the warrants are issued and the number of warrants issued with each security; |
| · | if applicable, the date from and after which any warrants issued as part of a unit and the related debt
securities, preferred stock or common stock will be separately transferable; |
| · | the number of shares of preferred stock or the number of shares of common stock purchasable upon exercise
of a warrant and the price at which those shares may be purchased; |
| · | if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
| · | information with respect to book-entry procedures, if any; |
| · | the antidilution provisions of, and other provisions for changes to or adjustment in the exercise price
of, the warrants, if any; |
| · | any redemption or call provisions; and |
| · | any additional terms of the warrants, including terms, procedures and limitations relating to the exchange
or exercise of the warrants. |
DESCRIPTION OF UNITS
We may, from time to time, issue units comprised
of one or more of the other securities that may be offered under this prospectus, in any combination. Each unit may also include debt
obligations of third parties, such as U.S. Treasury securities. Each unit will be issued so that the holder of the unit is also the holder
of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security.
The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately
at any time, or at any time before a specified date or other specific circumstances occur. The summary of the terms of the units contained
in this prospectus is not complete and is subject to, and is qualified in its entirety by, all provisions of the applicable unit agreements.
Any prospectus supplement related to any particular
units will describe, among other things:
| · | the material terms of the units and of the securities comprising the units, including whether and under
what circumstances those securities may be held or transferred separately; |
| · | any material provisions relating to the issuance, payment, settlement, transfer or exchange of the units
or of the securities comprising the units; |
| · | if appropriate, a discussion of certain material U.S. federal income tax considerations applicable to
the units; and |
| · | any material provisions of the governing unit agreement that differ from those described above. |
The applicable provisions described in this section,
as well as those described under “Description of Capital Stock,” “Description of Debt Securities” and “Description
of Warrants,” will apply to each unit and to each security included in each unit, respectively.
PLAN OF DISTRIBUTION
We may sell the securities being offered hereby:
| · | directly to one or more purchasers; |
| · | through agents; |
| · | through dealers; |
| · | through underwriters; |
| · | through a combination of any of the above methods of sale; or |
| · | through any other methods described in a prospectus supplement. |
We will identify the specific plan of distribution,
including any direct purchasers, agents, dealers, underwriters and, if applicable, their compensation, the purchase price, the net proceeds
to us, the public offering price, and any discounts or concessions allowed or reallowed or paid to dealers, in a prospectus supplement.
The distribution of securities may be effected,
from time to time, in one or more transactions, including block transactions, at-the-market offerings and transactions on the Nasdaq Capital
Market or any other organized market where the securities may be traded. The securities may be sold at a fixed price or prices, which
may be changed, or at market prices prevailing at the time of sale, at prices relating to the prevailing market prices or at negotiated
prices. The consideration may be cash or another form negotiated by the parties. Agents, underwriters or broker-dealers may be paid compensation
for offering and selling the securities. That compensation may be in the form of discounts, concessions or commissions to be received
from us or from the purchasers of the securities.
Offers to purchase the securities may be solicited
directly by us or by agents designated by us from time to time. We will, in the prospectus supplement relating to an offering, name any
agent that could be viewed as an underwriter under the Securities Act and describe any commissions we must pay. Any such agent will be
acting on a best efforts basis for the period of its appointment or, if indicated in the applicable prospectus supplement, on a firm commitment
basis.
If a dealer is utilized in the sale of the securities
in respect of which this prospectus is delivered, we will sell the securities to the dealer, as principal. The dealer, which may be deemed
to be an underwriter as that term is defined in the Securities Act, may then resell the securities to the public at varying prices to
be determined by the dealer at the time of resale. Dealer trading may take place in certain of the securities, including securities not
listed on any securities exchange.
If an underwriter or underwriters are utilized
in the sale, we will execute an underwriting agreement with the underwriters at the time of sale to them and the names of the underwriters
will be set forth in the applicable prospectus supplement, which will be used by the underwriters to make resales of the securities in
respect of which this prospectus is delivered to the public. The obligations of underwriters to purchase securities will be subject to
certain conditions precedent and the underwriters will be obligated to purchase all of the securities of a series if any are purchased.
We may directly solicit offers to purchase the
securities and we may make sales of securities directly to institutional investors or others. These persons may be deemed to be underwriters
within the meaning of the Securities Act with respect to any resale of the securities. To the extent required, the prospectus supplement
will describe the terms of any such sales, including the terms of any bidding or auction process, if used.
Underwriters, dealers, agents and other persons
may be entitled, under agreements that may be entered into with us, to indemnification against certain civil liabilities, including liabilities
under the Securities Act, or to contribution with respect to payments that they may be required to make in respect thereof. Underwriters,
dealers and agents may engage in transactions with, or perform services for, us in the ordinary course of business.
Any person participating in the distribution of
common stock registered under the registration statement that includes this prospectus will be subject to applicable provisions of the
Exchange Act and the applicable SEC rules and regulations, including, among others, Regulation M, which may limit the timing of purchases
and sales of our common stock by any such person. Furthermore, Regulation M may restrict the ability of any person engaged in the distribution
of our common stock to engage in market-making activities with respect to our common stock. These restrictions may affect the marketability
of our common stock and the ability of any person or entity to engage in market-making activities with respect to our common stock.
In order to facilitate the offering of the securities,
any underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of the securities or any other securities
the prices of which may be used to determine payments on such securities. Specifically, any underwriters may overallot in connection with
the offering, creating a short position for their own accounts. In addition, to cover overallotments or to stabilize the price of the
securities or of any such other securities, the underwriters may bid for, and purchase, the securities or any such other securities in
the open market. Finally, in any offering of the securities through a syndicate of underwriters, the underwriting syndicate may reclaim
selling concessions allowed to an underwriter or a dealer for distributing the securities in the offering if the syndicate repurchases
previously distributed securities in transactions to cover syndicate short positions, in stabilization transactions or otherwise. Any
of these activities may stabilize or maintain the market price of the securities above independent market levels. Any such underwriters
are not required to engage in these activities and may end any of these activities at any time.
LEGAL MATTERS
Unless the applicable prospectus supplement indicates
otherwise, the validity of the securities offered by this prospectus will be passed upon for us by Perkins Coie LLP.
EXPERTS
Marcum LLP, independent registered public accounting
firm, has audited our financial statements included in our Annual Report on Form 10-K for the year ended December 31, 2023,
as set forth in their report, which is incorporated by reference in this prospectus and elsewhere in the registration statement. Our financial
statements are incorporated by reference in reliance on Marcum LLP’s report, given on their authority as experts in accounting and
auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports,
proxy statements and other information with the SEC. Our SEC filings are available free of charge over the Internet at the SEC’s
web site at www.sec.gov. Our filings with the SEC are also available free of charge on our website at www.energous.com.
The information contained in, or that can be accessed through, our website is not incorporated by reference in this prospectus or any
prospectus supplement and you should not consider it a part of this prospectus or any accompanying prospectus supplement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate by reference”
the information we file with them, which means that we can disclose important information to you by referring you to those documents.
The information incorporated by reference is considered to be part of this prospectus and any accompanying prospectus supplement, and
later information filed with the SEC will automatically update and supersede this information. We incorporate by reference the documents
listed below and all documents subsequently filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act,
prior to the termination of the offering under this prospectus and any prospectus supplement, as well as filings made under such sections after the date of the initial registration statement and prior to effectiveness of the registration
statement:
| · | our Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on March 28,
2024; |
| | | |
| · | our Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2024, June 30, 2024 and September 30, 2024, filed with the SEC on May 14, 2024, August 12, 2024 and November 13, 2024, respectively; |
| | | |
| · | our Current Reports on Forms 8-K filed with the SEC on January 16, 2024, February 20, 2024,
March 26, 2024, April 16, 2024, April 26, 2024, June 14, 2024, June 21, 2024, August 30, 2024, October 3, 2024, October 17, 2024, November 8, 2024, and December 6, 2024; and |
| | | |
| · | the description of our common stock contained in our Registration Statement on Form 8-A filed with the SEC on March 26, 2014 under Section 12(b) of the Exchange Act, including any amendments or reports filed for
the purpose of updating such description (including Exhibit 4.3
to the our Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on March 28,
2024). |
Upon written or oral request, we will provide
to you, without charge, a copy of any or all of the documents that are incorporated by reference into this prospectus but not delivered
with the prospectus, including exhibits which are specifically incorporated by reference into such documents. Requests should be directed
to: Energous Corporation, Attention: Corporate Secretary, 3590 North First Street, Suite 210, San Jose, California 95134, (408) 963-0200.
See the section of this prospectus entitled “Where You Can Find Additional Information” for information concerning how to
read and obtain copies of materials that we file with the SEC.
$80,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
PROSPECTUS
, 2024
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The registrant’s estimated expenses in connection
with the issuance and distribution of the securities being registered are set forth in the following table.
| SEC registration fee (1) | |
$ | 7,416 | |
| FINRA fee | |
| * | |
| Nasdaq listing fee | |
| * | |
| Printing and engraving | |
| * | |
| Legal fees and expenses | |
| * | |
| Accounting fees and expenses | |
| * | |
| Transfer agent and registrar fees and expenses | |
| * | |
| Miscellaneous expenses | |
| * | |
| Total | |
$ | * | |
| (1) |
The registrant previously paid fees totaling $9,270
related to $100,000,000 of the registrant’s securities registered on the registration statement on Form S-3 filed with the
SEC on November 15, 2021. The registration fee in the amount of $7,416 relates to the registration fee previously paid in respect
of the portion of Unsold Securities being carried forward to this registration statement.
|
| * |
The amount of securities and number of offerings are indeterminable and the expenses cannot be estimated at this time. An estimate of the aggregate expenses in connection with the sale and distribution of securities being offered will be included in the applicable prospectus supplement. |
Item 15. Indemnification of Directors and Officers
Under Section 145 of the DGCL, a corporation
has the power to indemnify its directors and officers under certain prescribed circumstances and, subject to certain limitations, against
certain costs and expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement, actually and reasonably
incurred in connection with any threatened, pending or completed action, suit or proceeding, whether criminal, civil, administrative or
investigative, to which any of them is a party by reason of his being a director or officer of the corporation if it is determined that
he acted in accordance with the applicable standard of conduct set forth in such statutory provision. In addition, a corporation may advance
expenses incurred by a director or officer in defending a proceeding upon receipt of an undertaking from such person to repay any amount
so advanced if it is ultimately determined that such person is not eligible for indemnification.
The registrant’s certificate of incorporation
contains provisions that eliminate the personal liability of its directors for monetary damages for any breach of fiduciary duties as
a director, except liability for the following:
| |
· |
any breach of the director’s duty of loyalty to the registrant or its stockholders; |
| |
|
|
| |
· |
acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; |
| |
|
|
| |
· |
under Section 174 of the DGCL (regarding unlawful dividends and stock purchases); and |
| |
|
|
| |
· |
any transaction from which the director derived an improper personal benefit. |
As permitted by the DGCL, the registrant’s
bylaws provide that:
| |
· |
the registrant is required to indemnify its directors and executive officers to the fullest extent permitted by the DGCL against expenses (including attorneys’ fees), judgments, fines, settlements and other amounts actually and reasonably incurred in connection with any proceeding, arising by reason of the fact that such person is or was an agent of the registrant, subject to very limited exceptions; |
| |
· |
the registrant may indemnify its other employees and agents as set forth in the DGCL against expenses (including attorneys’ fees), judgments, fines, settlements and other amounts actually and reasonably incurred in connection with any proceeding, arising by reason of the fact that such person is or was an agent of the registrant; |
| |
· |
the registrant is required to advance expenses to its directors, executive officers. employees and other agents, incurred in defending any action or proceeding for which indemnification is required or permitted as described above to the fullest extent permitted by the DGCL, subject to certain additional requirements; and |
| |
· |
the rights to indemnification conferred in the bylaws are not exclusive. |
The registrant
has entered into indemnification agreements with each of its current directors and executive officers. These agreements require the registrant
to indemnify these individuals to the fullest extent not prohibited by Delaware law against liabilities that may arise by reason of their
service to the registrant, and to advance expenses incurred as a result of any proceeding against them as to which they could be indemnified.
Item 16. Exhibits
The following exhibits are filed as part of this registration statement:
|
† |
Filed herewith. |
| |
|
| * |
To be filed by amendment or as an exhibit to a report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act and incorporated herein by reference. |
| ** |
To be filed in accordance with the requirements of Section 305(b)(2) of the Trust Indenture Act of 1939, as amended. |
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers
or sales are being made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts
or events arising after the effective date of this 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 this 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 this registration statement or any material change to such information
in this registration statement;
provided, however, that paragraphs (a)(1)(i),
(a)(l)(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 reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of this 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 the 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 this 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 Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer, or controlling
person of the registrant in the successful defense of any action, suit, or proceeding) is asserted by such director, officer, or controlling
person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes
that:
(1) For purposes of determining any liability
under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability
under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(e) 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 of 1939 in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of
the Trust Indenture Act of 1939.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3
and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City
of San Jose, State of California, on December 13, 2024.
| |
Energous Corporation |
| |
|
|
| |
By: |
/s/ Mallorie Burak |
| |
|
Mallorie Burak |
| |
|
Chief Executive Officer and Chief
Financial Officer
(Principal Executive Officer and
Principal Financial Officer) |
POWER OF ATTORNEY
Each person whose signature appears below hereby
constitutes and appoints Mallorie Burak, acting individually, as his or her true and lawful attorney-in-fact and agent, with full power
of substitution, for him or her in any and all capacities, to execute any and all amendments to this registration statement (including
any post-effective amendments, and any new registration statement with respect to the offering contemplated thereby filed pursuant to
Rule 462(b) of the Securities Act of 1933), and to file the same, with exhibits thereto and other documents in connection therewith,
with the SEC, granting unto such attorney-in-fact and agent, with full power to act alone, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he or
she might or could do in person, hereby ratifying and confirming all that such attorney-in-fact and agent, or her substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/ Mallorie Burak |
|
Chief Executive Officer and Chief |
|
December 13, 2024 |
| Mallorie Burak |
|
Financial Officer, and Director
(Principal Executive Officer,
Principal Financial Officer and
Principal Accounting Officer) |
|
|
| |
|
|
|
|
| /s/ David Roberson |
|
Chair of the Board of Directors |
|
December 13, 2024 |
| David Roberson |
|
|
| |
|
|
| /s/ J. Michael Dodson |
|
Director |
|
December 13, 2024 |
| J. Michael Dodson |
|
|
| |
|
|
| /s/ Rahul Patel |
|
Director |
|
December 13, 2024 |
| Rahul Patel |
|
|
|
|
Exhibit 4.3
ENERGOUS
CORPORATION, as Issuer
INDENTURE
Dated as of [●], 20[●]
[●], as Trustee
DEBT SECURITIES
TABLE OF CONTENTS
| ARTICLE 1 DEFINITIONS |
1 |
| Section 1.01 Definitions of Terms |
1 |
| ARTICLE 2 ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
4 |
| Section 2.01 Designation and Terms of Securities |
4 |
| Section 2.02 Form of Securities and Trustee’s Certificate |
6 |
| Section 2.03 Denominations: Provisions for Payment |
6 |
| Section 2.04 Execution and Authentications |
7 |
| Section 2.05 Registration of Transfer and Exchange |
7 |
| Section 2.06 Temporary Securities |
8 |
| Section 2.07 Mutilated, Destroyed, Lost or Stolen Securities |
9 |
| Section 2.08 Cancellation |
9 |
| Section 2.09 Benefits of Indenture |
9 |
| Section 2.10 Authenticating Agent |
10 |
| Section 2.11 Global Securities |
10 |
| ARTICLE 3 REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS |
11 |
| Section 3.01 Redemption |
11 |
| Section 3.02 Notice of Redemption |
11 |
| Section 3.03 Payment Upon Redemption |
12 |
| Section 3.04 Sinking Fund |
12 |
| Section 3.05 Satisfaction of Sinking Fund Payments with Securities |
12 |
| Section 3.06 Redemption of Securities for Sinking Fund |
12 |
| ARTICLE 4 COVENANTS |
13 |
| Section 4.01 Payment of Principal, Premium and Interest |
13 |
| Section 4.02 Maintenance of Office or Agency |
13 |
| Section 4.03 Paying Agents |
13 |
| ARTICLE 5 SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
14 |
| Section 5.01 Company to Furnish Trustee Names and Addresses of Securityholders |
14 |
| Section 5.02 Preservation Of Information; Communications With Securityholders |
14 |
| Section 5.03 Reports by the Company |
15 |
| Section 5.04 Reports by the Trustee |
15 |
| ARTICLE 6 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
16 |
| Section 6.01 Events of Default |
16 |
| Section 6.02 Collection of Indebtedness and Suits for Enforcement by Trustee |
17 |
| Section 6.03 Application of Moneys Collected |
18 |
| Section 6.04 Limitation on Suits |
18 |
| Section 6.05 Rights and Remedies Cumulative; Delay or Omission Not Waiver |
19 |
| Section 6.06 Control by Securityholders |
19 |
| Section 6.07 Undertaking to Pay Costs |
20 |
| ARTICLE 7 CONCERNING THE TRUSTEE |
20 |
| Section 7.01 Certain Duties and Responsibilities of Trustee |
20 |
| Section 7.02 Certain Rights of Trustee |
21 |
| Section 7.03 Trustee Not Responsible for Recitals or Issuance or Securities |
22 |
| Section 7.04 May Hold Securities |
22 |
| Section 7.05 Moneys Held in Trust |
22 |
| Section 7.06 Compensation and Reimbursement |
22 |
| Section 7.07 Reliance on Officers’ Certificate |
23 |
| Section 7.08 Disqualification; Conflicting Interests |
23 |
| Section 7.09 Corporate Trustee Required; Eligibility |
23 |
| Section 7.10 Resignation and Removal; Appointment of Successor |
23 |
| Section 7.11 Acceptance of Appointment By Successor |
24 |
| Section 7.12 Merger, Conversion, Consolidation or Succession to Business |
25 |
| Section 7.13 Preferential Collection of Claims Against the Company |
25 |
| Section 7.14 Notice of Default |
25 |
| ARTICLE 8 CONCERNING THE SECURITYHOLDERS |
26 |
| Section 8.01 Evidence of Action by Securityholders |
26 |
| Section 8.02 Proof of Execution by Securityholders |
26 |
| Section 8.03 Who May be Deemed Owners |
26 |
| Section 8.04 Certain Securities Owned by Company Disregarded |
27 |
| Section 8.05 Actions Binding on Future Securityholders |
27 |
| ARTICLE 9 SUPPLEMENTAL INDENTURES |
27 |
| Section 9.01 Supplemental Indentures Without the Consent of Securityholders |
27 |
| Section 9.02 Supplemental Indentures With Consent of Securityholders |
28 |
| Section 9.03 Effect of Supplemental Indentures |
29 |
| Section 9.04 Securities Affected by Supplemental Indentures |
29 |
| Section 9.05 Execution of Supplemental Indentures |
29 |
| ARTICLE 10 SUCCESSOR ENTITY |
30 |
| Section 10.01 Company May Consolidate, Etc. |
30 |
| Section 10.02 Successor Entity Substituted |
30 |
| Section 10.03 Evidence of Consolidation, Etc. to Trustee |
31 |
| ARTICLE 11 SATISFACTION AND DISCHARGE |
31 |
| Section 11.01 Satisfaction and Discharge of Indenture |
31 |
| Section 11.02 Discharge of Obligations |
31 |
| Section 11.03 Deposited Moneys to be Held in Trust |
32 |
| Section 11.04 Payment of Moneys Held by Paying Agents |
32 |
| Section 11.05 Repayment to Company |
32 |
| ARTICLE 12 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
32 |
| Section 12.01 No Recourse |
32 |
| ARTICLE 13 MISCELLANEOUS PROVISIONS |
33 |
| Section 13.01 Effect on Successors and Assigns |
33 |
| Section 13.02 Actions by Successor |
33 |
| Section 13.03 Surrender of Company Powers |
33 |
| Section 13.04 Notices |
33 |
| Section 13.05 Governing Law |
33 |
| Section 13.06 Treatment of Securities as Debt |
33 |
| Section 13.07 Certificates and Opinions as to Conditions Precedent |
33 |
| Section 13.08 Payments on Business Days |
34 |
| Section 13.09 Conflict with Trust Indenture Act |
34 |
| Section 13.10 Counterparts |
34 |
| Section 13.11 Separability |
34 |
| Section 13.12 Compliance Certificates |
34 |
| ARTICLE 14 SUBORDINATION OF SECURITIES |
35 |
| Section 14.01 Subordination Terms |
35 |
INDENTURE
INDENTURE,
dated as of , 20[●], between ENERGOUS CORPORATION, a Delaware corporation (the “Company”), and [●], as
trustee (the “Trustee”):
WHEREAS,
for its lawful corporate purposes, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance
of debt securities (hereinafter referred to as the “Securities”), in an unlimited aggregate principal amount to be issued
from time to time in one or more series as in this Indenture provided, as registered Securities without coupons, to be authenticated by
the certificate of the Trustee;
WHEREAS,
to provide the terms and conditions upon which the Securities are to be authenticated, issued and delivered, the Company has duly authorized
the execution of this Indenture; and
WHEREAS,
all things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW,
THEREFORE, in consideration of the premises and the purchase of the Securities by the holders thereof, it is mutually covenanted
and agreed as follows for the equal and ratable benefit of the holders of Securities:
ARTICLE 1
DEFINITIONS
Section 1.01 Definitions of Terms.
The terms defined in this Section (except as in this Indenture
or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture
and of any indenture supplemental hereto shall have the respective meanings specified in this Section and shall include the plural
as well as the singular. All other terms used in this Indenture that are defined in the Trust Indenture Act of 1939, as amended, or that
are by reference in such Act defined in the Securities Act of 1933, as amended (the “Securities Act”) (except as herein or
any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires), shall have the meanings assigned
to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of the execution of this instrument.
“Authenticating Agent” means an authenticating
agent with respect to all or any of the series of Securities appointed by the Trustee pursuant to Section 2.10.
“Bankruptcy Law” means Title 11, U.S. Code,
or any similar federal or state law for the relief of debtors.
“Board of Directors” means the Board of Directors
of the Company or any duly authorized committee of such Board.
“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.
“Business Day” means, with respect to any
series of Securities, any day other than a day on which federal or state banking institutions in the Borough of Manhattan, the City of
New York, or in the city of the Corporate Trust Office of the Trustee, are authorized or obligated by law, executive order or regulation
to close.
“Certificate” means a certificate signed
by any Officer. The Certificate need not comply with the provisions of Section 13.07.
“Company” means Energous Corporation, a corporation
duly organized and existing under the laws of the State of Delaware, and, subject to the provisions of Article Ten, shall also include
its successors and assigns.
“Corporate Trust Office” means the office
of the Trustee at which, at any particular time, its corporate trust business shall be principally administered, which office at the date
hereof is located at [●].
“Custodian” means any receiver, trustee,
assignee, liquidator or similar official under any Bankruptcy Law.
“Default” means any event, act or condition
that with notice or lapse of time, or both, would constitute an Event of Default.
“Defaulted Interest” has the meaning set
forth in Section 2.03.
“Depositary” means, with respect to Securities
of any series for which the Company shall determine that such Securities will be issued as a Global Security, The Depository Trust Company,
New York, New York, another clearing agency, or any successor registered as a clearing agency under the Securities and Exchange Act of
1934, as amended (the “Exchange Act”), or other applicable statute or regulation, which, in each case, shall be designated
by the Company pursuant to either Section 2.01 or 2.11.
“Event of Default” means, with respect to
Securities of a particular series, any event specified in Section 6.01, continued for the period of time, if any, therein designated.
“Global Security” means, with respect to
any series of Securities, a Security executed by the Company and delivered by the Trustee to the Depositary or pursuant to the Depositary’s
instruction, all in accordance with the Indenture, which shall be registered in the name of the Depositary or its nominee.
“Governmental Obligations” means securities
that are (a) direct obligations of the United States of America or the other government or governments which issued the foreign currency
in which the principal of (or premium, if any) or interest on such Security in respect thereof shall be payable, in each case where the
timely payment or payments thereunder are supported by the full faith and credit of such government or governments or (b) obligations
of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America or the government or
governments that issued the foreign currency in which the principal of (or premium, if any) or interest on such Security in respect thereof
shall be payable, in each case where the timely payment or payments thereunder are unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government or governments, and which, in the case of (a) or (b), are not
callable or redeemable at the option of the issuer thereof at any time prior to the stated maturity of the Securities, and shall also
include a depositary receipt issued by a bank or trust company as custodian with respect to any such Governmental Obligation or a specific
payment of principal of or interest on any such Governmental Obligation held by such custodian for the account of the holder of such depositary
receipt; provided, however, that (except as required by law) such custodian is not authorized to make any deduction from the amount payable
to the holder of such depositary receipt from any amount received by the custodian in respect of the Governmental Obligation or the specific
payment of principal of or interest on the Governmental Obligation evidenced by such depositary receipt.
“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.
“Indenture” means this instrument as originally
executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into in accordance
with the terms hereof.
“Interest Payment Date”, when used with respect
to any installment of interest on a Security of a particular series, means the date specified in such Security or in a Board Resolution
or in an indenture supplemental hereto with respect to such series as the fixed date on which an installment of interest with respect
to Securities of that series is due and payable.
“Officer” means, with respect to the Company,
the chairman of the Board of Directors, a chief executive officer, a president, a chief financial officer, a chief operating officer,
any executive vice president, any senior vice president, any vice president, the treasurer or any assistant treasurer, the controller
or any assistant controller or the secretary or any assistant secretary.
“Officers’ Certificate” means a certificate
signed by any two Officers. Each such certificate shall include the statements provided for in Section 13.07, if and to the extent
required by the provisions thereof.
“Opinion of Counsel” means an opinion in
writing subject to customary exceptions of legal counsel, who may be an employee of or counsel for the Company, that is delivered to the
Trustee in accordance with the terms hereof. Each such opinion shall include the statements provided for in Section 13.07, if and
to the extent required by the provisions thereof.
“Outstanding”, when used with reference to
Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time, all Securities of that series
theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore canceled by the Trustee
or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that have previously been canceled; (b) Securities
or portions thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside and segregated in trust
by the Company (if the Company shall act as its own paying agent); provided, however, that if such Securities or portions of such Securities
are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as in Article Three provided, or
provision satisfactory to the Trustee shall have been made for giving such notice; and (c) Securities in lieu of or in substitution
for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.07.
“Person” means any individual, corporation,
partnership, joint venture, joint-stock company, limited liability company, association, trust, unincorporated organization, any other
entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Predecessor Security” of any particular
Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and,
for the purposes of this definition, any Security authenticated and delivered under Section 2.07 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“Responsible Officer” when used with respect
to the Trustee means the chairman of its board of directors, the chief executive officer, the president, any vice president, the secretary,
the treasurer, any trust officer, any corporate trust officer or any other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of his or her knowledge of and familiarity with the particular subject.
“Securities” means the debt Securities authenticated
and delivered under this Indenture.
“Securityholder” , “holder of
Securities”, “registered holder”, or other similar term, means the Person or Persons in whose
name or names a particular Security shall be registered on the books of the Company kept for that purpose in accordance with the terms
of this Indenture.
“Security Register” and “Security
Registrar” shall have the meanings as set forth in Section 2.05.
“Subsidiary” means, with respect to any Person,
(i) any corporation at least a majority of whose outstanding Voting Stock shall at the time be owned, directly or indirectly, by
such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, (ii) any general partnership,
joint venture or similar entity, at least a majority of whose outstanding partnership or similar interests shall at the time be owned
by such Person, or by one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries and (iii) any limited
partnership of which such Person or any of its Subsidiaries is a general partner.
“Trustee” means [●], and, subject to
the provisions of Article Seven, shall also include its successors and assigns, and, if at any time there is more than one Person
acting in such capacity hereunder, “Trustee” shall mean each such Person. The term “Trustee” as used with respect
to a particular series of the Securities shall mean the trustee with respect to that series.
“Trust Indenture Act” means the Trust Indenture
Act of 1939, as amended.
“Voting Stock”, as applied to stock of any
Person, means shares, interests, participations or other equivalents in the equity interest (however designated) in such Person having
ordinary voting power for the election of a majority of the directors (or the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by reason of the occurrence of a contingency.
ARTICLE 2
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
Section 2.01 Designation and Terms of Securities.
(a) The
aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may
be issued in one or more series up to the aggregate principal amount of Securities of that series from time to time authorized by or pursuant
to a Board Resolution or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities of any 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:
(1) the
title of the Securities of the series (which shall distinguish the Securities of that series from all other Securities);
(2) any
limit upon the aggregate principal amount of the Securities of that series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of that series);
(3) the
date or dates on which the principal of the Securities of the series is payable, any original issue discount that may apply to the Securities
of that series upon their issuance, the principal amount due at maturity, and the place(s) of payment;
(4) the
rate or rates at which the Securities of the series shall bear interest or the manner of calculation of such rate or rates, if any;
(5) the
date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest will be payable or the manner of
determination of such Interest Payment Dates, the place(s) of payment, and the record date for the determination of holders to whom
interest is payable on any such Interest Payment Dates or the manner of determination of such record dates;
(6) the
right, if any, to extend the interest payment periods and the duration of such extension;
(7) the
period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series may be redeemed,
in whole or in part, at the option of the Company;
(8) the
obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund, mandatory redemption,
or analogous provisions (including payments made in cash in satisfaction of future sinking fund obligations) or at the option of a holder
thereof and the period or periods within which, the price or prices at which, and the terms and conditions upon which, Securities of the
series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) the
form of the Securities of the series including the form of the Certificate of Authentication for such series;
(10) if
other than denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, the denominations in which the Securities
of the series shall be issuable;
(11)
any and all other terms (including terms, to the extent applicable, relating to any auction or remarketing of the Securities of that series
and any security for the obligations of the Company with respect to such Securities) with respect to such series (which terms shall not
be inconsistent with the terms of this Indenture, as amended by any supplemental indenture) including any terms which may be required
by or advisable under United States laws or regulations or advisable in connection with the marketing of Securities of that series;
(12)
whether the Securities are issuable as a Global Security and, in such case, the terms and the identity of the Depositary for such series;
(13)
whether the Securities will be convertible into or exchangeable for shares of common stock or other securities of the Company or any other
Person and, if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, including the conversion
or exchange price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional (at the Company’s
option or the holders’ option) conversion or exchange features, and the applicable conversion or exchange period;
(14)
if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 6.01;
(15)
any additional or different Events of Default or restrictive covenants (which may include, among other restrictions, restrictions on the
Company’s ability or the ability of the Company’s Subsidiaries to: incur additional indebtedness; issue additional securities;
create liens; pay dividends or make distributions in respect of their capital stock; redeem capital stock; place restrictions on such
Subsidiaries placing restrictions on their ability to pay dividends, make distributions or transfer assets; make investments or other
restricted payments; sell or otherwise dispose of assets; enter into sale-leaseback transactions; engage in transactions with stockholders
and affiliates; issue or sell stock of their Subsidiaries; or effect a consolidation or merger) or financial covenants (which may include,
among other financial covenants, financial covenants that require the Company and its Subsidiaries to maintain specified interest coverage,
fixed charge, cash flow-based or asset-based ratios) provided for with respect to the Securities of the series;
(16)
if other than U.S. dollars, the coin or currency in which the Securities of the series are denominated (including, but not limited to,
foreign currency);
(17)
the terms and conditions, if any, upon which the Company shall pay amounts in addition to the stated interest, premium, if any, and principal
amounts of the Securities of the series to any Securityholder that is not a “United States person” for federal tax purposes;
(18)
any restrictions on transfer, sale or assignment of the Securities of the series; and
(19)
the subordination terms of the Securities of the series, if any.
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to any such Board Resolution or in any indentures supplemental
hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution of the Company, 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 of the Company setting
forth the terms of the series.
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
dates.
Section 2.02 Form of Securities and Trustee’s Certificate.
The Securities of any series and the Trustee’s certificate of
authentication to be borne by such Securities shall be substantially of the tenor and purport as set forth in one or more indentures supplemental
hereto or as provided in a Board Resolution, and set forth in an Officers’ Certificate, and they may have such letters, numbers
or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved thereon as the Company
may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange on which Securities
of that series may be listed, or to conform to usage.
Section 2.03 Denominations: Provisions for Payment.
The Securities shall be issuable as registered Securities and in the
denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, subject to Section 2.01(a)(10). The Securities
of a particular series shall bear interest payable on the dates and at the rate specified with respect to that series. Subject to Section 2.01(a)(16),
the principal of and the interest on the Securities of any series, as well as any premium thereon in case of redemption thereof prior
to maturity, shall be payable in the coin or currency of the United States of America that at the time is legal tender for public and
private debt, at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, the City and State of New
York. Each Security shall be dated the date of its authentication. Interest on the Securities shall be computed on the basis of a 360-day
year composed of twelve 30-day months.
The interest installment on any Security that is payable, and is punctually
paid or duly provided for, on any Interest Payment Date for Securities of that series shall be paid to the Person in whose name said Security
(or one or more Predecessor Securities) is registered at the close of business on the regular record date for such interest installment.
In the event that any Security of a particular series or portion thereof is called for redemption and the redemption date is subsequent
to a regular record date with respect to any Interest Payment Date and prior to such Interest Payment Date, interest on such Security
will be paid upon presentation and surrender of such Security as provided in Section 3.03.
Any interest on any Security that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date for Securities of the same series (herein called “Defaulted Interest”)
shall forthwith cease to be payable to the registered holder on the relevant regular record date by virtue of having been such holder;
and such Defaulted Interest shall be paid by the Company, at its election, as provided in clause (1) or clause (2) below:
(1) The
Company may make payment of any Defaulted Interest on Securities to the Persons in whose names such Securities (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 such Security and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount
of money 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 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 not be more than 15 nor 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 notice of the proposed payment. The Trustee shall promptly notify the
Company of such special record date and, in the name and at the expense of the Company, 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 Securityholder at his
or her address as it appears in the Security Register (as hereinafter defined), 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 such Securities (or their respective Predecessor Securities) are registered on such
special record date and shall be no longer payable pursuant to the following clause (2).
(2) The
Company may make payment of any Defaulted Interest on any Securities in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such 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.
Unless otherwise set forth in a Board Resolution or one or more indentures
supplemental hereto establishing the terms of any series of Securities pursuant to Section 2.01 hereof, the term “regular record
date” as used in this Section with respect to a series of Securities and any Interest Payment Date for such series shall mean
either the fifteenth day of the month immediately preceding the month in which an Interest Payment Date established for such series pursuant
to Section 2.01 hereof shall occur, if such Interest Payment Date is the first day of a month, or the first day of the month in which
an Interest Payment Date established for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is
the fifteenth day of a month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this Section, each Security
of a series delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Security of such series shall carry
the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security.
Section 2.04 Execution and Authentications.
The Securities shall be signed on behalf of the Company by one of its
Officers. Signatures may be in the form of a manual or facsimile signature.
The Company may use the facsimile signature of any Person who shall
have been an Officer, notwithstanding the fact that at the time the Securities shall be authenticated and delivered or disposed of such
Person shall have ceased to be such an officer of the Company. The seal of the Company may be in the form of a facsimile of such seal
and may be impressed, affixed, imprinted or otherwise reproduced on the Securities. The Securities may contain such notations, legends
or endorsements required by law, stock exchange rule or usage. Each Security shall be dated the date of its authentication by the
Trustee.
A Security shall not be valid until authenticated manually by an authorized
signatory of the Trustee, or by an Authenticating Agent. Such signature shall be conclusive evidence that the Security so authenticated
has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits of this Indenture. At any time and
from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a written order of the Company for the authentication and delivery of such Securities,
signed by an Officer, and the Trustee in accordance with such written order shall authenticate and deliver such Securities.
In authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 7.01) shall
be fully protected in relying upon, an Opinion of Counsel stating that the form and terms thereof have been established in conformity
with the provisions of this Indenture.
The Trustee shall not be required to authenticate such Securities if
the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities
and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee.
Section 2.05 Registration of Transfer and Exchange.
(a) Securities
of any series may be exchanged upon presentation thereof at the office or agency of the Company designated for such purpose in the Borough
of Manhattan, the City and State of New York, for other Securities of such series of authorized denominations, and for a like aggregate
principal amount, upon payment of a sum sufficient to cover any tax or other governmental charge in relation thereto, all as provided
in this Section. In respect of any Securities so surrendered for exchange, the Company shall execute, the Trustee shall authenticate and
such office or agency shall deliver in exchange therefor the Security or Securities of the same series that the Securityholder making
the exchange shall be entitled to receive, bearing numbers not contemporaneously outstanding.
(b) The
Company shall keep, or cause to be kept, at its office or agency designated for such purpose in the Borough of Manhattan, the City and
State of New York, or such other location designated by the Company, a register or registers (herein referred to as the “Security
Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall register the Securities and the
transfers of Securities as in this Article provided and which at all reasonable times shall be open for inspection by the Trustee.
The registrar for the purpose of registering Securities and transfer of Securities as herein provided shall be appointed as authorized
by Board Resolution (the “Security Registrar”).
Upon surrender for transfer of any Security at the office or agency
of the Company designated for such purpose, the Company shall execute, the Trustee shall authenticate and such office or agency shall
deliver in the name of the transferee or transferees a new Security or Securities of the same series as the Security presented for a like
aggregate principal amount.
All Securities presented or surrendered for exchange or registration
of transfer, as provided in this Section, shall be accompanied (if so required by the Company or the Security Registrar) by a written
instrument or instruments of transfer, in form satisfactory to the Company or the Security Registrar, duly executed by the registered
holder or by such holder’s duly authorized attorney in writing.
(c) Except
as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or established
in one or more indentures supplemental to this Indenture, no service charge shall be made for any exchange or registration of transfer
of Securities, or issue of new Securities in case of partial redemption of any series, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge in relation thereto, other than exchanges pursuant to Section 2.06, Section 3.03(b) and
Section 9.04 not involving any transfer.
(d) The
Company shall not be required (i) to issue, exchange or register the transfer of any Securities during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of redemption of less than all the Outstanding Securities of the
same series and ending at the close of business on the day of such mailing, nor (ii) to register the transfer of or exchange any
Securities of any series or portions thereof called for redemption, other than the unredeemed portion of any such Securities being redeemed
in part. The provisions of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11.
Section 2.06 Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and the Trustee shall authenticate and deliver, temporary Securities (printed, lithographed, typewritten or otherwise
produced) of any authorized denomination. Such temporary Securities shall be substantially in the form of the definitive Securities in
lieu of which they are issued, but with such omissions, insertions and variations as may be appropriate for temporary Securities, all
as may be determined by the Company. Every temporary Security of any series shall be executed by the Company and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities of such series.
Without unnecessary delay the Company will execute and will furnish definitive Securities of such series and thereupon any or all temporary
Securities of such series may be surrendered in exchange therefor (without charge to the holders), at the office or agency of the Company
designated for the purpose in the Borough of Manhattan, the City and State of New York, and the Trustee shall authenticate and such office
or agency shall deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of such
series, unless the Company advises the Trustee to the effect that definitive Securities need not be executed and furnished until further
notice from the Company. Until so exchanged, the temporary Securities of such series shall be entitled to the same benefits under this
Indenture as definitive Securities of such series authenticated and delivered hereunder.
Section 2.07 Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security shall become mutilated
or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence) shall execute, and upon the Company’s request
the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the same series, bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Security, or in lieu of and in substitution for the Security so destroyed,
lost or stolen. In every case the applicant for a substituted Security shall furnish to the Company and the Trustee such security or indemnity
as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish
to the Company and the Trustee evidence to their satisfaction of the destruction, loss or theft of the applicant’s Security and
of the ownership thereof. The Trustee may authenticate any such substituted Security and deliver the same upon the written request or
authorization of any officer of the Company. Upon the issuance of any substituted Security, 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) connected therewith.
In case any Security that has matured or is about to mature shall become
mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Security, pay or authorize the payment of
the same (without surrender thereof except in the case of a mutilated Security) if the applicant for such payment shall furnish to the
Company and the Trustee such security or indemnity as they may require to save them harmless, and, in case of destruction, loss or theft,
evidence to the satisfaction of the Company and the Trustee of the destruction, loss or theft of such Security and of the ownership thereof.
Every replacement Security issued pursuant to the provisions of this
Section shall constitute an additional contractual obligation of the Company whether or not the mutilated, destroyed, lost or stolen
Security shall be found at any time, or be enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of the same series duly issued hereunder. All Securities shall be held and owned
upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities, and shall preclude (to the extent lawful) any and all other rights or remedies, notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities
without their surrender.
Section 2.08 Cancellation.
All Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer shall, if surrendered to the Company or any paying agent, be delivered to the Trustee for cancellation,
or, if surrendered to the Trustee, shall be canceled by it, and no Securities shall be issued in lieu thereof except as expressly required
or permitted by any of the provisions of this Indenture. On request of the Company at the time of such surrender, the Trustee shall deliver
to the Company canceled Securities held by the Trustee. In the absence of such request the Trustee may dispose of canceled Securities
in accordance with its standard procedures and deliver a certificate of disposition to the Company. If the Company shall otherwise acquire
any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are delivered to the Trustee for cancellation.
Section 2.09 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give or be construed to give to any Person, other than the parties hereto and the holders of the Securities (and, with respect to
the provisions of Article Fourteen, if applicable, the holders of any indebtedness of the Company to which the Securities of any
series are subordinated) any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant, condition
or provision herein contained; all such covenants, conditions and provisions being for the sole benefit of the parties hereto and of the
holders of the Securities (and, with respect to the provisions of Article Fourteen, if applicable, the holders of any indebtedness
of the Company to which the Securities of any series are subordinated).
Section 2.10 Authenticating Agent.
So long as any of the Securities of any series remain Outstanding there
may be an Authenticating Agent for any or all such series of Securities which the Trustee shall have the right to appoint. Said Authenticating
Agent shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon exchange, transfer or
partial redemption thereof, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder. All references in this Indenture to the authentication of Securities
by the Trustee shall be deemed to include authentication by an Authenticating Agent for such series. Each Authenticating Agent shall be
acceptable to the Company and shall be a corporation that has a combined capital and surplus, as most recently reported or determined
by it, sufficient under the laws of any jurisdiction under which it is organized or in which it is doing business to conduct a trust business,
and that is otherwise authorized under such laws to conduct such business and is subject to supervision or examination by federal or state
authorities. If at any time any Authenticating Agent shall cease to be eligible in accordance with these provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign by giving written notice
of resignation to the Trustee and to the Company. The Trustee may at any time (and upon request by the Company shall) terminate the agency
of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company. Upon resignation,
termination or cessation of eligibility of any Authenticating Agent, the Trustee may appoint an eligible successor Authenticating Agent
acceptable to the Company. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with
all the rights, powers and duties of its predecessor hereunder as if originally named as an Authenticating Agent pursuant hereto.
Section 2.11 Global Securities.
(a) If
the Company shall establish pursuant to Section 2.01 that the Securities of a particular series are to be issued as a Global Security,
then the Company shall execute and the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security
that (i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, all of the Outstanding
Securities of such series, (ii) shall be registered in the name of the Depositary or its nominee, (iii) shall be delivered by
the Trustee to the Depositary or pursuant to the Depositary’s instruction and (iv) shall bear a legend substantially to the
following effect: “Except as otherwise provided in Section 2.11 of the Indenture, this Security may be transferred, in whole
but not in part, only to another nominee of the Depositary or to a successor Depositary or to a nominee of such successor Depositary.”
(b) Notwithstanding
the provisions of Section 2.05, the Global Security of a series may be transferred, in whole but not in part and in the manner provided
in Section 2.05, only to another nominee of the Depositary for such series, or to a successor Depositary for such series selected
or approved by the Company or to a nominee of such successor Depositary.
(c) If
at any time the Depositary for a series of the Securities notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no longer be registered or in good standing under the Exchange
Act, or other applicable statute or regulation, and a successor Depositary for such series is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such condition, as the case may be, or if an Event of Default has occurred
and is continuing and the Company has received a request from the Depositary, this Section 2.11 shall no longer be applicable to
the Securities of such series and the Company will execute, and subject to Section 2.04, the Trustee will authenticate and deliver
the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security of such series in exchange for such Global Security. In addition, the Company
may at any time determine that the Securities of any series shall no longer be represented by a Global Security and that the provisions
of this Section 2.11 shall no longer apply to the Securities of such series. In such event the Company will execute and, subject
to Section 2.04, the Trustee, upon receipt of an Officers’ Certificate evidencing such determination by the Company, will authenticate
and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security. Upon the exchange
of the Global Security for such Securities in definitive registered form without coupons, in authorized denominations, the Global Security
shall be canceled by the Trustee. Such Securities in definitive registered form issued in exchange for the Global Security pursuant to
this Section 2.11(c) shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Depositary
for delivery to the Persons in whose names such Securities are so registered.
ARTICLE 3
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
Section 3.01 Redemption
The Company may redeem the Securities of any series issued hereunder
on and after the dates and in accordance with the terms established for such series pursuant to Section 2.01 hereof.
Section 3.02 Notice of Redemption.
(a) In
case the Company shall desire to exercise such right to redeem all or, as the case may be, a portion of the Securities of any series in
accordance with any right the Company reserved for itself to do so pursuant to Section 2.01 hereof, the Company shall, or shall cause
the Trustee to, give notice of such redemption to holders of the Securities of such series to be redeemed by mailing, first class postage
prepaid, a notice of such redemption not less than 30 days and not more than 90 days before the date fixed for redemption of that series
to such holders at their last addresses as they shall appear upon the Security Register, unless a shorter period is specified in the Securities
to be redeemed. Any notice that is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether
or not the registered holder receives the notice. In any case, failure duly to give such notice to the holder of any Security of any series
designated for redemption in whole or in part, or any defect in the notice, shall not affect the validity of the proceedings for the redemption
of any other Securities of such series or any other series. In the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers’ Certificate evidencing compliance with any such restriction.
Each such notice of redemption shall specify the date fixed for redemption
and the redemption price at which Securities of that series are to be redeemed, and shall state that payment of the redemption price of
such Securities to be redeemed will be made at the office or agency of the Company in the Borough of Manhattan, the City and State of
New York, upon presentation and surrender of such Securities, that interest accrued to the date fixed for redemption will be paid as specified
in said notice, that from and after said date interest will cease to accrue and that the redemption is for a sinking fund, if such is
the case. If less than all the Securities of a series are to be redeemed, the notice to the holders of Securities of that series to be
redeemed in part shall specify the particular Securities to be so redeemed.
In case any Security is to be redeemed in part only, the notice that
relates to such Security shall state the portion of the principal amount thereof to be redeemed, and shall state that on and after the
redemption date, upon surrender of such Security, a new Security or Securities of such series in principal amount equal to the unredeemed
portion thereof will be issued.
(b) If
less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 45 days’ notice (unless
a shorter notice shall be satisfactory to the Trustee) in advance of the date fixed for redemption as to the aggregate principal amount
of Securities of the series to be redeemed, and thereupon the Trustee shall select, by lot or in such other manner as it shall deem appropriate
and fair in its discretion and that may provide for the selection of a portion or portions (equal to one thousand U.S. dollars ($1,000)
or any integral multiple thereof) of the principal amount of such Securities of a denomination larger than $1,000, the Securities to be
redeemed and shall thereafter promptly notify the Company in writing of the numbers of the Securities to be redeemed, in whole or in part.
The Company may, if and whenever it shall so elect, by delivery of instructions signed on its behalf by an Officer, instruct the Trustee
or any paying agent to call all or any part of the Securities of a particular series for redemption and to give notice of redemption in
the manner set forth in this Section, such notice to be in the name of the Company or its own name as the Trustee or such paying agent
may deem advisable. In any case in which notice of redemption is to be given by the Trustee or any such paying agent, the Company shall
deliver or cause to be delivered to, or permit to remain with, the Trustee or such paying agent, as the case may be, such Security Register,
transfer books or other records, or suitable copies or extracts therefrom, sufficient to enable the Trustee or such paying agent to give
any notice by mail that may be required under the provisions of this Section.
Section 3.03 Payment Upon Redemption.
(a) If
the giving of notice of redemption shall have been completed as above provided, the Securities or portions of Securities of the series
to be redeemed specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for redemption and interest on such Securities or portions of Securities
shall cease to accrue on and after the date fixed for redemption, unless the Company shall default in the payment of such redemption price
and accrued interest with respect to any such Security or portion thereof. On presentation and surrender of such Securities on or after
the date fixed for redemption at the place of payment specified in the notice, said Securities shall be paid and redeemed at the applicable
redemption price for such series, together with interest accrued thereon to the date fixed for redemption (but if the date fixed for redemption
is an interest payment date, the interest installment payable on such date shall be payable to the registered holder at the close of business
on the applicable record date pursuant to Section 2.03).
(b) Upon
presentation of any Security of such series that is to be redeemed in part only, the Company shall execute and the Trustee shall authenticate
and the office or agency where the Security is presented shall deliver to the holder thereof, at the expense of the Company, a new Security
of the same series of authorized denominations in principal amount equal to the unredeemed portion of the Security so presented.
Section 3.04 Sinking Fund.
The provisions of Sections 3.04, 3.05 and 3.06 shall be applicable
to any sinking fund for the retirement of Securities of a series, except as otherwise specified as contemplated by Section 2.01 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of
such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional sinking fund payment”.
If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided
in Section 3.05. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 3.05 Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities of a series
and (ii) may apply as a credit Securities of a series that have been redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities,
in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to
be made pursuant to the terms of such Securities as provided for by the terms of such series, provided that such Securities have not been
previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the redemption price specified
in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 3.06 Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of 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 the series, the portion
thereof, if any, that is to be satisfied by delivering and crediting Securities of that series pursuant to Section 3.05 and the basis
for such credit and will, together with such Officers’ Certificate, deliver to the Trustee any Securities to be so delivered. Not
less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 3.02 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 3.02. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Section 3.03.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Principal, Premium and Interest.
The Company will duly and punctually pay or cause to be paid the principal
of (and premium, if any) and interest on the Securities of that series at the time and place and in the manner provided herein and established
with respect to such Securities. Payments of principal on the Securities may be made at the time provided herein and established with
respect to such Securities by U.S. dollar check drawn on and mailed to the address of the Securityholder entitled thereto as such address
shall appear in the Security Register, or U.S. dollar wire transfer to, a U.S. dollar account (such wire transfer to be made only to a
Securityholder of an aggregate principal amount of Securities of the applicable series in excess of U.S. $2,000,000 and only if such Securityholder
shall have furnished wire instructions to the Trustee no later than 15 days prior to the relevant payment date). Payments of interest
on the Securities may be made at the time provided herein and established with respect to such Securities by U.S. dollar check mailed
to the address of the Securityholder entitled thereto as such address shall appear in the Security Register, or U.S. dollar wire transfer
to, a U.S. dollar account (such a wire transfer to be made only to a Securityholder of an aggregate principal amount of Securities of
the applicable series in excess of U.S. $2,000,000 and only if such Securityholder shall have furnished wire instructions in writing to
the Security Registrar and the Trustee no later than 15 days prior to the relevant payment date.
Section 4.02 Maintenance of Office or Agency.
So long as any series of the Securities remain Outstanding, the Company
agrees to maintain an office or agency in the Borough of Manhattan, the City and State of New York, with respect to each such series and
at such other location or locations as may be designated as provided in this Section 4.02, where (i) Securities of that series
may be presented for payment, (ii) Securities of that series may be presented as herein above authorized for registration of transfer
and exchange, and (iii) notices and demands to or upon the Company in respect of the Securities of that series and this Indenture
may be given or served, such designation to continue with respect to such office or agency until the Company shall, by written notice
signed by any officer authorized to sign an Officers’ Certificate and delivered to the Trustee, designate some other office or agency
for such purposes or any of them. 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, notices and demands may be made or served at the Corporate Trust Office
of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, notices and demands. The Company
initially appoints the Corporate Trust Office of the Trustee located in the Borough of Manhattan, the City of New York as its paying agent
with respect to the Securities.
Section 4.03 Paying Agents.
(a) If
the Company shall appoint one or more paying agents for all or any series of the Securities, other than the Trustee, the Company will
cause each such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject
to the provisions of this Section:
(1) that
it will hold all sums held by it as such agent for the payment of the principal of (and premium, if any) or interest on the Securities
of that series (whether such sums have been paid to it by the Company or by any other obligor of such Securities) in trust for the benefit
of the Persons entitled thereto;
(2) that
it will give the Trustee notice of any failure by the Company (or by any other obligor of such Securities) to make any payment of the
principal of (and premium, if any) or interest on the Securities of that series when the same shall be due and payable;
(3) that
it will, at any time during the continuance of any failure referred to in the preceding paragraph (a)(2) above, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent; and
(4) that
it will perform all other duties of paying agent as set forth in this Indenture.
(b) If
the Company shall act as its own paying agent with respect to any series of the Securities, it will on or before each due date of the
principal of (and premium, if any) or interest on Securities of that series, set aside, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay such principal (and premium, if any) or interest so becoming due on Securities of
that series until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee
of such action, or any failure (by it or any other obligor on such Securities) to take such action. Whenever the Company shall have one
or more paying agents for any series of Securities, it will, prior to each due date of the principal of (and premium, if any) or interest
on any Securities of that series, deposit with the 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 this action or failure so to act.
(c) Notwithstanding
anything in this Section to the contrary, (i) the agreement to hold sums in trust as provided in this Section is subject
to the provisions of Section 11.05, and (ii) the Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or 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 terms and conditions as those upon which such sums
were held by the Company or such paying agent; and, upon such payment by the Company or any paying agent to the Trustee, the Company or
such paying agent shall be released from all further liability with respect to such money.
ARTICLE 5
SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 5.01 Company to Furnish Trustee Names and Addresses
of Securityholders.
The Company will furnish or cause to be furnished to the Trustee (a) within
15 days after each regular record date (as defined in Section 2.03) a list, in such form as the Trustee may reasonably require, of
the names and addresses of the holders of each series of Securities as of such regular record date, provided that the Company shall not
be obligated to furnish or cause to furnish such list at any time that the list shall not differ in any respect from the most recent list
furnished to the Trustee by the Company and (b) 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, in either case, no such list need be furnished for any series for which the Trustee shall
be the Security Registrar.
Section 5.02 Preservation Of Information; Communications With
Securityholders.
(a) The
Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the holders
of Securities contained in the most recent list furnished to it as provided in Section 5.01 and as to the names and addresses of
holders of Securities received by the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b) The
Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders
may communicate as provided in Section 312(b) of the Trust Indenture Act with other Securityholders with respect to their rights
under this Indenture or under the Securities, and, in connection with any such communications, the Trustee shall satisfy its obligations
under Section 312(b) of the Trust Indenture Act in accordance with the provisions of Section 312(b) of the Trust Indenture
Act.
Section 5.03 Reports by the Company.
(a) The Company covenants and agrees to provide to the Trustee
(which delivery may be via electronic mail), after the Company files the same with the Securities and Exchange Commission, copies of the
annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Securities
and Exchange Commission may from time to time by rules and regulations prescribe) that the Company files with the Securities and
Exchange Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to
file information, documents or reports pursuant to either of such sections, then to file with the Trustee, in accordance with the rules and
regulations prescribed from time to time by the Securities and Exchange Commission, such of the supplementary and periodic information,
documents and reports that may be required pursuant to Section 13 of the Exchange Act, in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to time in such rules and regulations; provided, however, the Company
shall not be required to deliver to the Trustee any materials for which the Company has sought and received confidential treatment by
the Securities and Exchange Commission; and provided further, so long as such filings are available on the Securities and Exchange Commission’s
Electronic Data Gathering, Analysis and Retrieval System (EDGAR) or any successor system thereto, such filings shall be deemed to have
been filed with the Trustee for purposes of this Section 5.03 without any further action required by the Company.
(b) The Company covenants and agrees to file with the Trustee
and the Securities and Exchange Commission, in accordance with the rules and regulations prescribed from to time by the Securities
and Exchange Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions
and covenants provided for in this Indenture as may be required from time to time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail, first
class postage prepaid, or reputable over-night delivery service that provides for evidence of receipt, to the Securityholders, as their
names and addresses appear upon the Security Register, within 30 days after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company pursuant to subsections (a) and (b) of this Section as
may be required by rules and regulations prescribed from time to time by the Securities and Exchange Commission.
Section 5.04 Reports by the Trustee.
(a) If
required by Section 313(a) of the Trust Indenture Act, the Trustee, within 60 days after each May 1, shall transmit by
mail, first class postage prepaid, to the Securityholders, as their names and addresses appear upon the Security Register, a brief report
dated as of such May 1, which complies with Section 313(a) of the Trust Indenture Act.
(b) The
Trustee shall comply with Section 313(b) and 313(c) of the Trust Indenture Act.
(c) A
copy of each such report shall, at the time of such transmission to Securityholders, be filed by the Trustee with the Company, with each
securities exchange upon which any Securities are listed (if so listed) and also with the Securities and Exchange Commission. The Company
agrees to notify the Trustee when any Securities become listed on any securities exchange.
ARTICLE 6
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 6.01 Events of Default.
(a) Whenever
used herein with respect to Securities of a particular series, “Event of Default” means any one or more of the following events
that has occurred and is continuing:
(1) the
Company defaults in the payment of any installment of interest upon any of the Securities of that series, as and when the same shall become
due and payable, and such default continues for a period of 90 days; provided, however, that a valid extension of an interest payment
period by the Company in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment
of interest for this purpose;
(2) the
Company defaults in the payment of the principal of (or premium, if any, on) any of the Securities of that series as and when the same
shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by any sinking
or analogous fund established with respect to that series; provided, however, that a valid extension of the maturity of such Securities
in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment of principal or premium,
if any;
(3) the
Company fails to observe or perform any other of its covenants or agreements with respect to that series contained in this Indenture or
otherwise established with respect to that series of Securities pursuant to Section 2.01 hereof (other than a covenant or agreement
that has been expressly included in this Indenture solely for the benefit of one or more series of Securities other than such series)
for a period of 90 days after the date on which written notice of such failure, requiring the same to be remedied and stating that such
notice is a “Notice of Default” hereunder, shall have been given to the Company by the Trustee, by registered or certified
mail, or to the Company and the Trustee by the holders of at least 25% in principal amount of the Securities of that series at the time
Outstanding;
(4) the
Company pursuant to or within the meaning of any Bankruptcy Law (i) commences a voluntary case, (ii) consents to the entry of
an order for relief against it in an involuntary case, (iii) consents to the appointment of a Custodian of it or for all or substantially
all of its property or (iv) makes a general assignment for the benefit of its creditors; or
(5) a
court of competent jurisdiction enters an order under any Bankruptcy Law that (i) is for relief against the Company in an involuntary
case, (ii) appoints a Custodian of the Company for all or substantially all of its property or (iii) orders the liquidation
of the Company, and the order or decree remains unstayed and in effect for 90 days.
(b) In
each and every such case (other than an Event of Default specified in clause (4) or clause (5) above), unless the principal
of all the Securities of that series shall have already become due and payable, either the Trustee or the holders of not less than 25%
in aggregate principal amount of the Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to
the Trustee if given by such Securityholders), may declare the principal of (and premium, if any, on) and accrued and unpaid interest
on all the Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall
be immediately due and payable. If an Event of Default specified in clause (4) or clause (5) above occurs, the principal of
and accrued and unpaid interest on all the Securities of that series shall automatically be immediately due and payable without any declaration
or other act on the part of the Trustee or the holders of the Securities.
(c) At
any time after the principal of (and premium, if any, on) and accrued and unpaid interest on the Securities of that series shall have
been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered
as hereinafter provided, the holders of a majority in aggregate principal amount of the Securities of that series then Outstanding hereunder,
by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (i) the Company
has paid or deposited with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of that series
and the principal of (and premium, if any, on) any and all Securities of that series that shall have become due otherwise than by acceleration
(with interest upon such principal and premium, if any, and, to the extent that such payment is enforceable under applicable law, upon
overdue installments of interest, at the rate per annum expressed in the Securities of that series to the date of such payment or deposit)
and the amount payable to the Trustee under Section 7.06, and (ii) any and all Events of Default under the Indenture with respect
to such series, other than the nonpayment of principal on (and premium, if any, on) and accrued and unpaid interest on Securities of that
series that shall not have become due by their terms, shall have been remedied or waived as provided in Section 6.06.
No such rescission and annulment shall extend to or shall affect any
subsequent default or impair any right consequent thereon.
(d) In
case the Trustee shall have proceeded to enforce any right with respect to Securities of that series under this Indenture and such proceedings
shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case, subject to any determination in such proceedings, the Company and the Trustee shall
be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Company and the Trustee
shall continue as though no such proceedings had been taken.
Section 6.02 Collection of Indebtedness and Suits for Enforcement
by Trustee.
(a) The
Company covenants that (i) in case it shall default in the payment of any installment of interest on any of the Securities of a series,
or in any payment required by any sinking or analogous fund established with respect to that series as and when the same shall have become
due and payable, and such default shall have continued for a period of 90 days, or (ii) in case it shall default in the payment of
the principal of (or premium, if any, on) any of the Securities of a series when the same shall have become due and payable, whether upon
maturity of the Securities of a series or upon redemption or upon declaration or otherwise then, upon demand of the Trustee, the Company
will pay to the Trustee, for the benefit of the holders of the Securities of that series, the whole amount that then shall have been become
due and payable on all such Securities for principal (and premium, if any) or interest, or both, as the case may be, with interest upon
the overdue principal (and premium, if any) and (to the extent that payment of such interest is enforceable under applicable law) upon
overdue installments of interest at the rate per annum expressed in the Securities of that series; and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection, and the amount payable to the Trustee under Section 7.06.
(b) If
the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid,
and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against
the Company or other obligor upon the Securities of that series and collect the moneys adjudged or decreed to be payable in the manner
provided by law or equity out of the property of the Company or other obligor upon the Securities of that series, wherever situated.
(c) In
case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial proceedings
affecting the Company, or its creditors or property, the Trustee shall have power to intervene in such proceedings and take any action
therein that may be permitted by the court and shall (except as may be otherwise provided by law) be entitled to file such proofs of claim
and other papers and documents as may be necessary or advisable in order to have the claims of the Trustee and of the holders of Securities
of such series allowed for the entire amount due and payable by the Company under the Indenture at the date of institution of such proceedings
and for any additional amount that may become due and payable by the Company after such date, and to collect and receive any moneys or
other property payable or deliverable on any such claim, and to distribute the same after the deduction of the amount payable to the Trustee
under Section 7.06; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of the holders
of Securities of such series to make such payments to the Trustee, and, in the event that the Trustee shall consent to the making of such
payments directly to such Securityholders, to pay to the Trustee any amount due it under Section 7.06.
(d) All
rights of action and of asserting claims under this Indenture, or under any of the terms established with respect to Securities of that
series, may be enforced by the Trustee without the possession of any of such Securities, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or 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 payment to the Trustee of any amounts due under Section 7.06,
be for the ratable benefit of the holders of the Securities of such series.
In case of an Event of Default hereunder, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in the Indenture or in aid of the exercise of any power granted in this Indenture,
or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
Nothing contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities of that series or the rights of any holder thereof or to authorize the Trustee to vote in respect of the claim
of any Securityholder in any such proceeding.
Section 6.03 Application of Moneys Collected.
Any moneys collected by the Trustee pursuant to this Article with
respect to a particular series of Securities shall be applied in the following order, at the date or dates fixed by the Trustee and, in
case of the distribution of such moneys on account of principal (or premium, if any) or interest, upon presentation of the Securities
of that series, and notation thereon of the payment, if only partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of reasonable costs and expenses of collection
and of all amounts payable to the Trustee under Section 7.06;
SECOND: If applicable, to the payment of all indebtedness of the Company
to which such series of Securities is subordinated to the extent required by Section 7.06 and Article Fourteen;
THIRD: To the payment of the amounts then due and unpaid upon Securities
of such series for principal (and premium, if any) and interest, in respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal (and premium,
if any) and interest, respectively; and
FOURTH: To the payment of the remainder, if any, to the Company, its
successors or assigns, or any other Person lawfully entitled thereto.
Section 6.04 Limitation on Suits.
No holder of any Security of any series shall have any right by virtue
or by availing of any provision of this Indenture to institute any suit, action or proceeding in equity or at law upon or under or with
respect to this Indenture or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless (i) such holder
previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof with respect to the Securities
of such series specifying such Event of Default, as hereinbefore provided; (ii) the holders of not less than 25% in aggregate principal
amount of the Securities of such series then Outstanding shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder; (iii) such holder or holders shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby; (iv) the Trustee for 60
days after its receipt of such notice, request and offer of indemnity, shall have failed to institute any such action, suit or proceeding;
and (v) during such 60 day period, the holders of a majority in principal amount of the Securities of that series do not give the
Trustee a direction inconsistent with the request.
Notwithstanding anything contained herein to the contrary or any other
provisions of this Indenture, the right of any holder of any Security to receive payment of the principal of (and premium, if any) and
interest on such Security, as therein provided, on or after the respective due dates expressed in such Security (or in the case of redemption,
on the redemption date), or to institute suit for the enforcement of any such payment on or after such respective dates or redemption
date, shall not be impaired or affected without the consent of such holder and by accepting a Security hereunder it is expressly understood,
intended and covenanted by the taker and holder of every Security of such series with every other such taker and holder and the Trustee,
that no one or more holders of Securities of such series shall have any right in any manner whatsoever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of the holders of any other of such Securities, or to obtain or
seek to obtain priority over or preference to any other such holder, or to enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of all holders of Securities of such series. For the protection and enforcement
of the provisions of this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either
at law or in equity.
Section 6.05 Rights and Remedies Cumulative; Delay or Omission
Not Waiver.
(a) Except
as otherwise provided in Section 2.07, all powers and remedies given by this Article to the Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive of any other powers and remedies available to the Trustee
or the holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture or otherwise established with respect to such Securities.
(b) No
delay or omission of the Trustee or of any holder of any of the Securities to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such default or
an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by this Article or by
law to the Trustee or the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee
or by the Securityholders.
Section 6.06 Control by Securityholders.
The holders of a majority in aggregate principal amount of the Securities
of any series at the time Outstanding, determined in accordance with Section 8.04, 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 such series; provided, however, that such direction shall not be in conflict with any rule of law or with this Indenture.
Subject to the provisions of Section 7.01, 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 officers of the Trustee, determine that the proceeding so directed, subject to the Trustee’s
duties under the Trust Indenture Act, would involve the Trustee in personal liability or might be unduly prejudicial to the Securityholders
not involved in the proceeding. The holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding
affected thereby, determined in accordance with Section 8.04, may on behalf of the holders of all of the Securities of such series
waive any past default in the performance of any of the covenants contained herein or established pursuant to Section 2.01 with respect
to such series and its consequences, except a default in the payment of the principal of, or premium, if any, or interest on, any of the
Securities of that series as and when the same shall become due by the terms of such Securities otherwise than by acceleration (unless
such default has been cured and a sum sufficient to pay all matured installments of interest and principal and any premium has been deposited
with the Trustee (in accordance with Section 6.01(c)). Upon any such waiver, the default covered thereby shall be deemed to be cured
for all purposes of this Indenture and the Company, the Trustee and the holders of the Securities of such series shall be restored to
their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
Section 6.07 Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any Securities
by such holder’s 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 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, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall
not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder, or group of Securityholders, holding more
than 10% in aggregate principal amount of the Outstanding Securities of any series, or to any suit instituted by any Securityholder for
the enforcement of the payment of the principal of (or premium, if any) or interest on any Security of such series, on or after the respective
due dates expressed in such Security or established pursuant to this Indenture.
ARTICLE 7
CONCERNING THE TRUSTEE
Section 7.01 Certain Duties and Responsibilities of Trustee.
(a) The
Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing of all Events
of Default with respect to the Securities of that series that may have occurred, shall undertake to perform with respect to the Securities
of such series such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants shall be read
into this Indenture against the Trustee. In case an Event of Default with respect to the Securities of a series has occurred (that has
not been cured or waived), the Trustee shall exercise with respect to Securities of that series 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 man would exercise or use under the circumstances
in the conduct of his own affairs.
(b) 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) prior
to the occurrence of an Event of Default with respect to the Securities of a series and after the curing or waiving of all such Events
of Default with respect to that series that may have occurred:
(A) the
duties and obligations of the Trustee shall with respect to the Securities of such series be determined solely by the express provisions
of this Indenture, and the Trustee shall not be liable with respect to the Securities of such series except for the performance of such
duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(B) in
the absence of bad faith on the part of the Trustee, the Trustee may with respect to the Securities of such series conclusively rely,
as to the truth of the statements and the correctness of the opinions expressed therein, upon any 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 that 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;
(ii) the
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(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 not less than a majority in principal amount of the Securities of any series at the time Outstanding 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 Securities of that series; and
(iv) None
of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of its rights or powers if there is reasonable ground for
believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Indenture or adequate
indemnity against such risk is not reasonably assured to it.
Section 7.02 Certain Rights of Trustee.
Except as otherwise provided in Section 7.01:
(a) The
Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond, security or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) Any
request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution or an instrument
signed in the name of the Company by any authorized officer of the Company (unless other evidence in respect thereof is specifically prescribed
herein);
(c) The
Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted hereunder in good faith and in reliance thereon;
(d) The
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction
of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities that may be incurred therein or thereby; nothing contained
herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default with respect to a series of the
Securities (that has not been cured or waived), to exercise with respect to Securities of that series such of the rights and powers vested
in it by this Indenture, and to use the same degree of care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs;
(e) The
Trustee shall not be liable for any action taken or omitted to be taken by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture;
(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, consent, order, approval, bond, security, or other papers or documents, unless requested in writing
so to do by the holders of not less than a majority in principal amount of the Outstanding Securities of the particular series affected
thereby (determined as provided in Section 8.04); provided, however, that if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable
indemnity against such costs, expenses or liabilities as a condition to so proceeding. The reasonable expense of every such examination
shall be paid by the Company or, if paid by the Trustee, shall be repaid by the Company upon demand; 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.
In addition, the Trustee shall not be deemed to have knowledge of any
Default or Event of Default except (1) any Event of Default occurring pursuant to Sections 6.01(a)(1) and 6.01(a)(2) or
(2) any Default or Event of Default of which the Trustee shall have received written notification in the manner set forth in this
Indenture or a Responsible Officer of the Trustee shall have obtained actual knowledge. Delivery of reports, information and documents
to the Trustee under Section 5.03 is for informational purposes only and the information and the Trustee’s receipt of the foregoing
shall not constitute constructive notice of any information contained therein, or determinable from information contained therein including
the Company’s compliance with any of their covenants thereunder (as to which the Trustee is entitled to rely exclusively on an Officers’
Certificate).
Section 7.03 Trustee Not Responsible for Recitals or Issuance
or Securities.
(a) The
recitals contained herein and in the Securities shall be taken as the statements of the Company, and the Trustee assumes no responsibility
for the correctness of the same.
(b) The
Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities.
(c) The
Trustee shall not be accountable for the use or application by the Company of any of the Securities or of the proceeds of such Securities,
or for the use or application of any moneys paid over by the Trustee in accordance with any provision of this Indenture or established
pursuant to Section 2.01, or for the use or application of any moneys received by any paying agent other than the Trustee.
Section 7.04 May Hold Securities.
The Trustee or any paying agent or Security Registrar, in its individual
or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not Trustee, paying
agent or Security Registrar.
Section 7.05 Moneys Held in Trust.
Subject to the provisions of Section 11.05, all moneys received
by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need
not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any moneys
received by it hereunder except such as it may agree with the Company to pay thereon.
Section 7.06 Compensation and Reimbursement.
(a) The
Company covenants and agrees to pay to the Trustee, and the Trustee shall be entitled to, such reasonable compensation (which shall not
be limited by any provision of law in regard to the compensation of a trustee of an express trust) as the Company and the Trustee may
from time to time agree in writing, for all services rendered by it in the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties hereunder of the Trustee, and, except as otherwise expressly provided herein, the Company
will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of
its counsel and of all Persons not regularly in its employ), except any such expense, disbursement or advance as may arise from its negligence
or bad faith and except as the Company and Trustee may from time to time agree in writing. The Company also covenants to indemnify the
Trustee (and its officers, agents, directors and employees) for, and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Trustee and arising out of or in connection with the acceptance or administration of
this trust, including the reasonable costs and expenses of defending itself against any claim of liability in the premises.
(b) The
obligations of the Company under this Section to compensate and indemnify the Trustee and to pay or reimburse the Trustee for reasonable
expenses, disbursements and advances shall constitute additional indebtedness hereunder, or, in the case of Securities that are subordinated,
shall constitute additional indebtedness of the Company to which the Securities are subordinated. Such additional indebtedness shall be
secured by a lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the holders of particular Securities.
Section 7.07 Reliance on Officers’ Certificate.
Except as otherwise provided in Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it reasonably necessary or desirable that a matter be proved
or established prior to taking or suffering or omitting to take any action hereunder, such matter (unless other evidence in respect thereof
be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers’ Certificate delivered to the Trustee and such certificate, in the absence of negligence or
bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted to be taken by it
under the provisions of this Indenture upon the faith thereof.
Section 7.08 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any “conflicting interest”
within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the Company shall in all respects comply with
the provisions of Section 310(b) of the Trust Indenture Act.
Section 7.09 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to the Securities
issued hereunder which shall at all times be a corporation organized and doing business under the laws of the United States of America
or any state or territory thereof or of the District of Columbia, or a corporation or other Person permitted to act as trustee by the
Securities and Exchange Commission, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus
of at least fifty million U.S. dollars ($50,000,000), and subject to supervision or examination by federal, state, territorial, or District
of Columbia authority.
If such corporation or other Person 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 or other Person shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published. The Company may not, nor may any Person directly or indirectly controlling,
controlled by, or under common control with the Company, serve as Trustee. In case at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, the Trustee shall resign immediately in the manner and with the effect specified in
Section 7.10.
Section 7.10 Resignation and Removal; Appointment of Successor.
(a) The
Trustee or any successor hereafter appointed may at any time resign with respect to the Securities of one or more series by giving written
notice thereof to the Company and by transmitting notice of resignation by mail, first class postage prepaid, to the Securityholders of
such series, as their names and addresses appear upon the Security Register. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee with respect to Securities of such series by written instrument, in duplicate, executed by order
of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee.
If no successor trustee shall have been so appointed and have accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee with respect
to Securities of such series, or any Securityholder of that series who has been a bona fide holder of a Security or Securities for at
least six months may on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In
case at any time any one of the following shall occur:
(i) the
Trustee shall fail to comply with the provisions of Section 7.08 after written request therefor by the Company or by any Securityholder
who has been a bona fide holder of a Security or Securities for at least six months; or
(ii) the
Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 and shall fail to resign after written request
therefor by the Company or by any such Securityholder; or
(iii) the
Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding,
or a receiver of the Trustee or of its property shall be appointed or consented to, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee with respect
to all Securities and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one
copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or any Securityholder who
has been a bona fide holder of a Security or Securities for at least six months may, on behalf of that holder and all others similarly
situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee. Such
court may thereupon after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The
holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may at any time remove the
Trustee with respect to such series by so notifying the Trustee and the Company and may appoint a successor Trustee for such series with
the consent of the Company.
(d) Any
resignation or removal of the Trustee and appointment of a successor trustee with respect to the Securities of a series pursuant to any
of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.11.
(e) Any
successor trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more series or all
of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series.
Section 7.11 Acceptance of Appointment By Successor.
(a) In
case of the appointment hereunder of a successor trustee with respect to all 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 the request of the Company or the
successor trustee, such retiring Trustee shall, upon payment of its charges, 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
case of the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor trustee with respect to the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor trustee shall accept such appointment and which (i) 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 Securities of that or those series to which the appointment of such successor trustee relates,
(ii) 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 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 (iii) 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, 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 that no Trustee shall be responsible for any act or failure to act on the part of any other Trustee hereunder; 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, such retiring Trustee shall with respect to the Securities of that or those series to which the appointment of such successor
trustee relates have no further responsibility for the exercise of rights and powers or for the performance of the duties and obligations
vested in the Trustee under this Indenture, 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 Securities of that or those series to
which the appointment of such successor trustee relates; but, on request of the Company or any successor trustee, such retiring Trustee
shall duly assign, transfer and deliver to such successor trustee, to the extent contemplated by such supplemental indenture, the property
and money held by such retiring Trustee hereunder with respect to the 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 7.12 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 the corporate trust business of the Trustee, including the administration of the trust created
by this Indenture, shall be the successor of the Trustee hereunder, provided that such corporation shall be qualified under the provisions
of Section 7.08 and eligible under the provisions of Section 7.09, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had
itself authenticated such Securities.
Section 7.13 Preferential Collection of Claims Against the
Company.
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
Section 7.14 Notice of Default
If any Default or any Event of Default occurs and is continuing and
if such Default or Event of Default is known to a Responsible Officer of the Trustee, the Trustee shall mail to each Securityholder in
the manner and to the extent provided in Section 313(c) of the Trust Indenture Act notice of the Default or Event of Default
within 45 days after it occurs, unless such Default or Event of Default has been cured; provided, however, that, except in the
case of a default in the payment of the principal of (or premium, if any) or interest on any Security, 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
Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interest of the Securityholders.
ARTICLE 8
CONCERNING THE SECURITYHOLDERS
Section 8.01 Evidence of Action by Securityholders.
Whenever in this Indenture it is provided that the holders of a majority
or specified percentage in aggregate principal amount of the Securities of a particular series may take any action (including the making
of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at the time of
taking any such action the holders of such majority or specified percentage of that series have joined therein may be evidenced by any
instrument or any number of instruments of similar tenor executed by such holders of Securities of that series in person or by agent or
proxy appointed in writing.
If the Company shall solicit from the Securityholders of any series
any request, demand, authorization, direction, notice, consent, waiver or other action, the Company may, at its option, as evidenced by
an Officers’ Certificate, fix in advance a record date for such series for the determination of Securityholders entitled to give
such request, demand, authorization, direction, notice, consent, waiver or other action, but the Company shall have no obligation to do
so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Securityholders of record at the close of business on the record date shall be deemed to
be Securityholders for the purposes of determining whether Securityholders of the requisite proportion of Outstanding Securities of that
series have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other action,
and for that purpose the Outstanding Securities of that series shall be computed as of the record date; provided, however, that no such
authorization, agreement or consent by such Securityholders on the record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the record date.
Section 8.02 Proof of Execution by Securityholders.
Subject to the provisions of Section 7.01, proof of the execution
of any instrument by a Securityholder (such proof will not require notarization) or his agent or proxy and proof of the holding by any
Person of any of the Securities shall be sufficient if made in the following manner:
(a) The
fact and date of the execution by any such Person of any instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The
ownership of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security Registrar thereof.
The Trustee may require such additional proof of any matter referred
to in this Section as it shall deem necessary.
Section 8.03 Who May be Deemed Owners.
Prior to the due presentment for registration of transfer of any Security,
the Company, the Trustee, any paying agent and any Security Registrar may deem and treat the Person in whose name such Security shall
be registered upon the books of the Company as the absolute owner of such Security (whether or not such Security shall be overdue and
notwithstanding any notice of ownership or writing thereon made by anyone other than the Security Registrar) for the purpose of receiving
payment of or on account of the principal of (and premium, if any) and (subject to Section 2.03) interest on such Security and for
all other purposes; and neither the Company nor the Trustee nor any paying agent nor any Security Registrar shall be affected by any notice
to the contrary.
Section 8.04 Certain Securities Owned by Company Disregarded.
In determining whether the holders of the requisite aggregate principal
amount of Securities of a particular series have concurred in any direction, consent or waiver under this Indenture, the Securities of
that series that are owned by the Company or any other obligor on the Securities of that series or by any Person directly or indirectly
controlling or controlled by or under common control with the Company or any other obligor on the Securities of that series shall be disregarded
and deemed not to be Outstanding for the purpose of any such determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver, only Securities of such series that the Trustee actually knows
are so owned shall be so disregarded. The Securities so owned that have been pledged in good faith may be regarded as Outstanding for
the purposes of this Section, if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right so to act with
respect to such Securities and that the pledgee is not a Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any such other obligor. In case of a dispute as to such right, any decision by the Trustee
taken upon the advice of counsel shall be full protection to the Trustee.
Section 8.05 Actions Binding on Future Securityholders.
At any time prior to (but not after) the evidencing to the Trustee,
as provided in Section 8.01, of the taking of any action by the holders of the majority or percentage in aggregate principal amount
of the Securities of a particular series specified in this Indenture in connection with such action, any holder of a Security of that
series that is shown by the evidence to be included in the Securities the holders of which have consented to such action may, by filing
written notice with the Trustee, and upon proof of holding as provided in Section 8.02, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the holder of any Security shall be conclusive and binding upon such holder and
upon all future holders and owners of such Security, and of any Security issued in exchange therefor, on registration of transfer thereof
or in place thereof, irrespective of whether or not any notation in regard thereto is made upon such Security. Any action taken by the
holders of the majority or percentage in aggregate principal amount of the Securities of a particular series specified in this Indenture
in connection with such action shall be conclusively binding upon the Company, the Trustee and the holders of all the Securities of that
series.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without the Consent of
Securityholders.
In addition to any supplemental indenture otherwise authorized by this
Indenture, the Company and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act as then in effect), without the consent of the Securityholders, for
one or more of the following purposes:
(a) to
cure any ambiguity, defect, or inconsistency herein or in the Securities of any series;
(b) to
comply with Article Ten;
(c) to
provide for uncertificated Securities in addition to or in place of certificated Securities;
(d) to
add to the covenants, restrictions, conditions or provisions relating to the Company for the benefit of the holders of all or any series
of Securities (and if such covenants, restrictions, conditions or provisions are to be for the benefit of less than all series of Securities,
stating that such covenants, restrictions, conditions or provisions are expressly being included solely for the benefit of such series),
to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions
or provisions an Event of Default, or to surrender any right or power herein conferred upon the Company;
(e) to
add to, delete from, or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication,
and delivery of Securities, as herein set forth;
(f) to
make any change that does not adversely affect the rights of any Securityholder in any material respect; provided that any amendment made
solely to conform the provisions of this Indenture to the corresponding description of the Securities contained in the applicable prospectus
or prospectus supplement shall be deemed to not adversely affect the interests of the Securityholders;
(g) to
provide for the issuance of and establish the form and terms and conditions of the Securities of any series as provided in Section 2.01,
to establish the form of any certifications required to be furnished pursuant to the terms of this Indenture or any series of Securities,
or to add to the rights of the holders of any series of Securities;
(h) to
evidence and provide for the acceptance of appointment hereunder by a successor trustee; or
(i) to
comply with any requirements of the Securities and Exchange Commission or any successor in connection with the qualification of this Indenture
under the Trust Indenture Act.
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, and to make any further appropriate agreements and stipulations that may be therein contained, but
the Trustee shall not be obligated to enter into any such supplemental indenture that affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section may
be executed by the Company and the Trustee without the consent of the holders of any of the Securities at the time Outstanding, notwithstanding
any of the provisions of Section 9.02.
Section 9.02 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Section 8.01) of the
holders of not less than a majority in aggregate principal amount of the Securities of each series affected by such supplemental indenture
or indentures at the time Outstanding, the Company, when authorized by a Board Resolution, and the Trustee may from time to time and at
any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as
then in effect) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture
or of any supplemental indenture or of modifying in any manner not covered by Section 9.01 the rights of the holders of the Securities
of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the holders
of each Security then Outstanding and affected thereby,
(i) extend the fixed maturity of any Securities of any series,
or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any premium payable
upon redemption thereof;
(ii) reduce the aforesaid percentage of Securities, the holders
of which are required to consent to any such supplemental indenture;
(iii) change any obligation to pay additional amounts;
(iv) reduce the amount of principal of an original issue discount
security or any other Security payable upon acceleration of the maturity thereof;
(v) change currency in which any Security or any premium or interest
is payable;
(vi) impair the right to enforce any payment on or with respect
to any Security;
(vii) adversely change the right to convert or exchange, including
decreasing the conversion rate or increasing the conversion price of, such Security (if applicable);
(viii) if the Securities are secured, change the terms and conditions
pursuant to which the Securities are secured in a manner adverse to the holders of the Securities;
(ix) reduce the percentage in principal amount of outstanding
Securities of any series, the consent of whose holders is required for modification or amendment of the indenture or for waiver of compliance
with certain provisions of the indenture or for waiver of certain defaults;
(x) reduce the requirements contained in the indenture for quorum
or voting;
(xi) change any obligations of the Company to maintain an office
or agency in the places and for the purposes required by the indentures; or
(xii) modify any of the above provisions.
It shall not be necessary for the consent of the Securityholders of
any series affected thereby under this Section to approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such consent shall approve the substance thereof.
Section 9.03 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to the provisions
of this Article or of Section 10.01, this Indenture shall, with respect to such series, be and be deemed to be modified and
amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the holders of Securities of the series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
Section 9.04 Securities Affected by Supplemental Indentures.
Securities of any series affected by a supplemental indenture, authenticated
and delivered after the execution of such supplemental indenture pursuant to the provisions of this Article or of Section 10.01,
may bear a notation in form approved by the Company, provided such form meets the requirements of any securities exchange upon which such
series may be listed, as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities
of that series so modified as to conform, in the opinion of the Board of Directors, to any modification of this Indenture contained in
any such supplemental indenture may be prepared by the Company, authenticated by the Trustee and delivered in exchange for the Securities
of that series then Outstanding.
Section 9.05 Execution of Supplemental Indentures.
Upon the request of the Company, accompanied by its Board Resolutions
authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Securityholders
required to consent thereto as aforesaid, the Trustee shall join with the Company in the execution of such supplemental indenture unless
such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion but shall not be obligated to enter into such supplemental indenture. The Trustee, subject to the provisions
of Section 7.01, may receive an Officers’ Certificate or an Opinion of Counsel as conclusive evidence that any supplemental
indenture executed pursuant to this Article is authorized or permitted by, and conforms to, the terms of this Article and that
it is proper for the Trustee under the provisions of this Article to join in the execution thereof; provided, however, that such
Officers’ Certificate or Opinion of Counsel need not be provided in connection with the execution of a supplemental indenture that
establishes the terms of a series of Securities pursuant to Section 2.01 hereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee shall transmit by mail, first class postage prepaid, a
notice, setting forth in general terms the substance of such supplemental indenture, to the Securityholders of all series affected thereby
as their names and addresses appear upon the Security Register. Any failure of the Trustee to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such supplemental indenture.
ARTICLE 10
SUCCESSOR ENTITY
Section 10.01 Company May Consolidate, Etc.
Except as provided pursuant to Section 2.01 pursuant to a Board
Resolution, and set forth in an Officers’ Certificate, or established in one or more indentures supplemental to this Indenture,
nothing contained in this Indenture shall prevent any consolidation or merger of the Company with or into any other Person (whether or
not affiliated with the Company) or successive consolidations or mergers in which the Company or its successor or successors shall be
a party or parties, or shall prevent any sale, conveyance, transfer or other disposition of the property of the Company or its successor
or successors as an entirety, or substantially as an entirety, to any other corporation (whether or not affiliated with the Company or
its successor or successors) authorized to acquire and operate the same; provided, however, (a) the Company hereby covenants and
agrees that, upon any such consolidation or merger (in each case, if the Company is not the survivor of such transaction), sale, conveyance,
transfer or other disposition, the due and punctual payment of the principal of (and premium, if any) and interest on all of the Securities
of all series in accordance with the terms of each series, according to their tenor, and the due and punctual performance and observance
of all the covenants and conditions of this Indenture with respect to each series or established with respect to such series pursuant
to Section 2.01 to be kept or performed by the Company shall be expressly assumed, by supplemental indenture (which shall conform
to the provisions of the Trust Indenture Act, as then in effect) reasonably satisfactory in form to the Trustee executed and delivered
to the Trustee by the entity formed by such consolidation, or into which the Company shall have been merged, or by the entity which shall
have acquired such property and (b) in the event that the Securities of any series then Outstanding are convertible into or exchangeable
for shares of common stock or other securities of the Company, such entity shall, by such supplemental indenture, make provision so that
the Securityholders of Securities of that series shall thereafter be entitled to receive upon conversion or exchange of such Securities
the number of securities or property to which a holder of the number of shares of common stock or other securities of the Company deliverable
upon conversion or exchange of those Securities would have been entitled had such conversion or exchange occurred immediately prior to
such consolidation, merger, sale, conveyance, transfer or other disposition.
Section 10.02 Successor Entity Substituted.
(a) In
case of any such consolidation, merger, sale, conveyance, transfer or other disposition and upon the assumption by the successor entity
by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the obligations set forth
under Section 10.01 on all of the Securities of all series Outstanding, such successor entity shall succeed to and be substituted
for the Company with the same effect as if it had been named as the Company herein, and thereupon the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and the Securities.
(b) In
case of any such consolidation, merger, sale, conveyance, transfer or other disposition, such changes in phraseology and form (but not
in substance) may be made in the Securities thereafter to be issued as may be appropriate.
(c) Nothing
contained in this Article shall require any action by the Company in the case of a consolidation or merger of any Person into the
Company where the Company is the survivor of such transaction, or the acquisition by the Company, by purchase or otherwise, of all or
any part of the property of any other Person (whether or not affiliated with the Company).
Section 10.03 Evidence of Consolidation, Etc. to Trustee.
The Trustee, subject to the provisions of Section 7.01, may receive
an Officers’ Certificate or an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale, conveyance,
transfer or other disposition, and any such assumption, comply with the provisions of this Article.
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge of Indenture.
If at any time: (a) the Company shall have delivered to the Trustee
for cancellation all Securities of a series theretofore authenticated and not delivered to the Trustee for cancellation (other than any
Securities that shall have been destroyed, lost or stolen and that shall have been replaced or paid as provided in Section 2.07 and
Securities for whose payment money or Governmental Obligations have theretofore been deposited in trust or segregated and held in trust
by the Company and thereupon repaid to the Company or discharged from such trust, as provided in Section 11.05); or (b) all
such Securities of a particular series not theretofore delivered to the Trustee for cancellation shall have become due and payable, or
are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption, and the Company shall deposit or cause to be deposited with the Trustee as trust
funds the entire amount in moneys or Governmental Obligations or a combination thereof, sufficient in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay at maturity or upon
redemption all Securities of that series not theretofore delivered to the Trustee for cancellation, including principal (and premium,
if any) and interest due or to become due to such date of maturity or date fixed for redemption, as the case may be, and if the Company
shall also pay or cause to be paid all other sums payable hereunder with respect to such series by the Company then this Indenture shall
thereupon cease to be of further effect with respect to such series except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02,
4.03 and 7.10, that shall survive until the date of maturity or redemption date, as the case may be, and Sections 7.06 and 11.05, that
shall survive to such date and thereafter, and the Trustee, on demand of the Company and at the cost and expense of the Company shall
execute proper instruments acknowledging satisfaction of and discharging this Indenture with respect to such series.
Section 11.02 Discharge of Obligations.
If at any time all such Securities of a particular series not heretofore
delivered to the Trustee for cancellation or that have not become due and payable as described in Section 11.01 shall have been paid
by the Company by depositing irrevocably with the Trustee as trust funds moneys or an amount of Governmental Obligations sufficient to
pay at maturity or upon redemption all such Securities of that series not theretofore delivered to the Trustee for cancellation, including
principal (and premium, if any) and interest due or to become due to such date of maturity or date fixed for redemption, as the case may
be, and if the Company shall also pay or cause to be paid all other sums payable hereunder by the Company with respect to such series,
then after the date such moneys or Governmental Obligations, as the case may be, are deposited with the Trustee the obligations of the
Company under this Indenture with respect to such series shall cease to be of further effect except for the provisions of Sections 2.03,
2.05, 2.07, 4,01, 4.02, 4,03, 7.06, 7.10 and 11.05 hereof that shall survive until such Securities shall mature and be paid.
Thereafter, Sections 7.06 and 11.05 shall survive.
Section 11.03 Deposited Moneys to be Held in Trust.
All moneys or Governmental Obligations deposited with the Trustee pursuant
to Sections 11.01 or 11.02 shall be held in trust and shall be available for payment as due, either directly or through any paying agent
(including the Company acting as its own paying agent), to the holders of the particular series of Securities for the payment or redemption
of which such moneys or Governmental Obligations have been deposited with the Trustee.
Section 11.04 Payment of Moneys Held by Paying Agents.
In connection with the satisfaction and discharge of this Indenture
all moneys or Governmental Obligations then held by any paying agent under the provisions of this Indenture shall, upon demand of the
Company, be paid to the Trustee and thereupon such paying agent shall be released from all further liability with respect to such moneys
or Governmental Obligations.
Section 11.05 Repayment to Company.
Any moneys or Governmental Obligations deposited with any paying agent
or the Trustee, or then held by the Company, in trust for payment of principal of or premium, if any, or interest on the Securities of
a particular series that are not applied but remain unclaimed by the holders of such Securities for at least two years after the date
upon which the principal of (and premium, if any) or interest on such Securities shall have respectively become due and payable, or such
other shorter period set forth in applicable escheat or abandoned or unclaimed property law, shall be repaid to the Company on May 31
of each year or upon the Company’s request or (if then held by the Company) shall be discharged from such trust; and thereupon the
paying agent and the Trustee shall be released from all further liability with respect to such moneys or Governmental Obligations, and
the holder of any of the Securities entitled to receive such payment shall thereafter, as a general creditor, look only to the Company
for the payment thereof.
ARTICLE 12
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 12.01 No Recourse.
No recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, past, present or future as such, of the Company or of any predecessor or successor corporation, either
directly or through the Company or any such predecessor or successor corporation, 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, 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 of any predecessor or 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 Securities or implied therefrom; and that any and all such personal liability of every name
and nature, 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 Securities 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 issuance of
such Securities.
ARTICLE 13
MISCELLANEOUS PROVISIONS
Section 13.01 Effect on Successors and Assigns.
All the covenants, stipulations, promises and agreements in this Indenture
made by or on behalf of the Company shall bind its successors and assigns, whether so expressed or not.
Section 13.02 Actions by Successor.
Any act or proceeding by any provision of this Indenture authorized
or required to be done or performed by any board, committee or officer of the Company shall and may be done and performed with like force
and effect by the corresponding board, committee or officer of any corporation that shall at the time be the lawful successor of the Company.
Section 13.03 Surrender of Company Powers.
The Company by instrument in writing executed by authority of 2/3 (two-thirds)
its Board of Directors and delivered to the Trustee may surrender any of the powers reserved to the Company, and thereupon such power
so surrendered shall terminate both as to the Company and as to any successor corporation.
Section 13.04 Notices.
Except as otherwise expressly provided herein, any notice, request
or demand that by any provision of this Indenture is required or permitted to be given, made or served by the Trustee or by the holders
of Securities or by any other Person pursuant to this Indenture to or on the Company may be given or served by being deposited in first
class mail, postage prepaid, addressed (until another address is filed in writing by the Company with the Trustee), as follows: Energous
Corporation, 3590 North First Street, Suite 210, San Jose, California 95134, Attn: Chief Financial Officer. Any notice, election,
request or demand by the Company or any Securityholder or by any other Person pursuant to this Indenture to or upon the Trustee shall
be deemed to have been sufficiently given or made, for all purposes, if given or made in writing at the Corporate Trust Office of the
Trustee.
Section 13.05 Governing Law.
This Indenture and each Security shall be deemed to be a contract made
under the internal laws of the State of New York, and for all purposes shall be construed in accordance with the laws of said State, except
to the extent that the Trust Indenture Act is applicable.
Section 13.06 Treatment of Securities as Debt.
It is intended that the Securities will be treated as indebtedness
and not as equity for federal income tax purposes. The provisions of this Indenture shall be interpreted to further this intention.
Section 13.07 Certificates and Opinions as to Conditions Precedent.
(a) Upon
any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company
shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent provided for in this Indenture (other
than the certificate to be delivered pursuant to Section 13.12) relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in the case
of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional certificate or opinion need be furnished.
(b) Each
certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant
in this Indenture shall include (i) a statement that the Person making such certificate or opinion has read such covenant or condition;
(ii) 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; (iii) a statement that, in the opinion of such Person, he has made such examination or
investigation as is reasonably necessary to enable him to express an informed opinion as to whether or not such covenant or condition
has been complied with; and (iv) a statement as to whether or not, in the opinion of such Person, such condition or covenant has
been complied with.
Section 13.08 Payments on Business Days.
Except as provided pursuant to Section 2.01 pursuant to a Board
Resolution, and set forth in an Officers’ Certificate, or established in one or more indentures supplemental to this Indenture,
in any case where the date of maturity of interest or principal of any Security or the date of redemption of any Security shall not be
a Business Day, then payment of interest or principal (and premium, if any) may be made on the next succeeding Business Day with the same
force and effect as if made on the nominal date of maturity or redemption, and no interest shall accrue for the period after such nominal
date.
Section 13.09 Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall control.
Section 13.10 Counterparts.
This Indenture may be executed in any number of counterparts, each
of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
Section 13.11 Separability.
In case any one or more of the provisions contained in this Indenture
or in the Securities of any series shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this Indenture or of such Securities, but this Indenture and such
Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
Section 13.12 Compliance Certificates.
The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year during which any Securities of any series were outstanding, an officer’s certificate stating whether or
not the signers know of any Default or Event of Default that occurred during such fiscal year. Such certificate shall contain a certification
from the principal executive officer, principal financial officer or principal accounting officer of the Company that a review has been
conducted of the activities of the Company and the Company’s performance under this Indenture and that the Company has complied
with all conditions and covenants under this Indenture. For purposes of this Section 13.12, such compliance shall be determined without
regard to any period of grace or requirement of notice provided under this Indenture. If the officer of the Company signing such certificate
has knowledge of such a Default or Event of Default, the certificate shall describe any such Default or Event of Default and its status.
ARTICLE 14
SUBORDINATION OF SECURITIES
Section 14.01 Subordination Terms.
If a series of Securities issued hereunder is subordinated, the payment
by the Company of the principal of (and premium, if any) and interest on any such series of Securities shall be subordinated to the extent
set forth in an indenture supplemental hereto relating to such Securities.
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written.
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ENERGOUS CORPORATION |
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By: |
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Name: |
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Title: |
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[●], as Trustee |
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By: |
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Name: |
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Title: |
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[SIGNATURE PAGE TO DEBT SECURITIES INDENTURE]
CROSS-REFERENCE TABLE(1)
| Section of Trust Indenture Act of 1939, as Amended |
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Section of
Indenture |
| 310(a) |
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7.09 |
| 310(b) |
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7.08 |
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7.10 |
| 310(c) |
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Inapplicable |
| 311(a) |
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7.13 |
| 311(b) |
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7.13 |
| 311(c) |
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Inapplicable |
| 312(a) |
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5.01 |
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5.02(a) |
| 312(b) |
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5.02(c) |
| 312(c) |
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5.02(c) |
| 313(a) |
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5.04(a) |
| 313(b) |
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5.04(b) |
| 313(c) |
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5.04(a) |
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5.04(b) |
| 313(d) |
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5.04(c) |
| 314(a) |
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5.03 |
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13.12 |
| 314(b) |
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Inapplicable |
| 314(c) |
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13.07(a) |
| 314(d) |
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Inapplicable |
| 314(e) |
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13.07(b) |
| 314(f) |
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Inapplicable |
| 315(a) |
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7.01(a) |
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7.01(b) |
| 315(b) |
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7.14 |
| 315(c) |
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7.01 |
| 315(d) |
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7.01(b) |
| 315(e) |
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6.07 |
| 316(a) |
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6.06 |
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8.04 |
| 316(b) |
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6.04 |
| 316(c) |
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8.01 |
| 317(a) |
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6.02 |
| 317(b) |
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4.03 |
| 318(a) |
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13.09 |
| (1) |
This Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions. |
Exhibit 5.1
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Perkins Coie LLP
1900 Sixteenth Street
Suite 1400
Denver, CO 80202-5255 |
T. +1.303.291.2300
F. +1.303.291.2400
perkinscoie.com
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December 13, 2024
Energous Corporation
3590 North First Street, Suite 210
San Jose, California 95134
Re: Registration Statement on Form S-3 filed by Energous Corporation
Ladies and Gentlemen:
We have acted as counsel to Energous Corporation,
a Delaware corporation (the “Company”), in connection with the preparation and filing with the U.S. Securities and
Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities
Act”), and the rules and regulations promulgated thereunder, of a registration statement on Form S-3 (the “Registration
Statement”) for the registration of the sale from time to time of one or more series of the following securities by the Company
(collectively, the “Securities”):
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(a) |
shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), |
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(b) |
shares of the Company’s preferred stock, par value $0.0001 per share (“Preferred Stock”), which may be issued as part of a series established pursuant to a certificate of designation filed in the office of the Secretary of State of the State of Delaware in accordance with the applicable provisions of the General Corporation Law of the State of Delaware (a “Certificate of Designation”), |
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(c) |
debt securities of the Company, which may be either senior debt securities or subordinated debt securities (“Debt Securities”), |
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(d) |
warrants representing rights to purchase Common Stock, Preferred Stock or Debt Securities (“Warrants”), and |
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(e) |
units consisting of any combination of the Securities (“Units”). |
In our capacity as counsel to the Company, we
have examined the Registration Statement and such documents, records and instruments as we have deemed necessary for the purposes of this
opinion. As to matters of fact material to the opinions expressed herein, we have relied on (a) information in public authority documents
(and all opinions based on public authority documents are as of the date of such public authority documents and not as of the date of
this opinion letter), and (b) information provided in certificates of officers of the Company. We have not independently verified
the facts so relied on.
In such examination, we have assumed the following
without investigation: (a) the authenticity of original documents and the genuineness of all signatures; (b) the conformity
to the originals of all documents submitted to us as copies; and (c) the truth, accuracy and completeness of the information, representations
and warranties contained in the records, documents, instruments and certificates we have reviewed.
Page 2
Based upon the foregoing examination and in reliance
thereon, and subject to (a) the assumptions stated and in reliance on statements of fact contained in the documents that we have
examined and (b) completion of all corporate action required to be taken by the Company to duly authorize each proposed issuance
of Securities (including the due reservation of any shares of Common Stock or Preferred Stock for issuance upon conversion or exchange
of any other Securities), we are of the opinion that:
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1. |
With respect to the Common Stock, when the shares of Common Stock have been issued and delivered in accordance with the applicable purchase, underwriting or similar agreement against the receipt of requisite consideration therefor provided for therein, such shares of Common Stock will be validly issued, fully paid and non-assessable. |
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2. |
With respect to Preferred Stock, when (a) the applicable Certificate of Designation for the Preferred Stock to be issued has been duly filed with the Office of the Secretary of State of the State of Delaware and (b) the shares of Preferred Stock have been issued and delivered in accordance with the applicable purchase, underwriting or similar agreement against the receipt of requisite consideration therefor provided for therein, such shares of Preferred Stock will be validly issued, fully paid and non-assessable. |
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3. |
With respect to Debt Securities to be issued under one or more indentures (each, an “Indenture”), when (a) the terms of the Debt Securities have been established in accordance with the Indenture, (b) the Indenture has been qualified under the Trust Indenture Act of 1939, as amended, (c) the Indenture and the applicable supplement thereto, if any, have been duly authorized and validly executed and delivered by the Company and the trustee thereunder and (d) the Debt Securities have been executed, issued, delivered and authenticated in accordance with the terms of the Indenture and the applicable purchase, underwriting or similar agreement against the receipt of requisite consideration therefor provided for therein, the Debt Securities will be legal, valid and binding obligations of the Company. |
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4. |
With respect to the Warrants, when (a) a warrant agreement relating to the Warrants (the “Warrant Agreement”) has been duly authorized and validly executed and delivered by the Company and each party thereto, (b) the terms of the Warrants have been established in accordance with the Warrant Agreement and (c) the Warrants have been executed and delivered in accordance with the related Warrant Agreement and the applicable purchase, underwriting or similar agreement against the receipt of requisite consideration therefor provided for therein, the Warrants will be legal, valid and binding obligations of the Company. |
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5. |
With respect to Common Stock or Preferred Stock to be issued upon conversion or exercise, as applicable, of the Debt Securities, Preferred Stock or Warrants, when (a) if applicable, the Certificate of Designation for the Preferred Stock to be issued has been duly filed with the Office of the Secretary of State of the State of Delaware and (b) such Common Stock or Preferred Stock, as the case may be, has been issued and delivered in accordance with the terms of the applicable Debt Securities, Preferred Stock or Warrants, as the case may be, such shares of Common Stock or Preferred Stock will be validly issued, fully paid and non-assessable. |
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6. |
With respect to the Units, when (a) a unit agreement relating to the Units (the “Unit Agreement”) has been duly authorized and validly executed and delivered by the Company and each party thereto, (b) the terms of the Units have been established in accordance with the Unit Agreement and (c) the Units have been executed and delivered in accordance with the related Unit Agreement and the applicable purchase, underwriting or similar agreement against the receipt of requisite consideration therefor provided for therein, the Units will be legal, valid and binding obligations of the Company. |
The foregoing opinions are subject
to the following exclusions and qualifications:
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(a) |
Our opinions are as of the date hereof, and we have no responsibility to update this opinion for events and circumstances occurring after the date hereof or as to facts relating to prior events that are subsequently brought to our attention. This opinion is limited to the laws, including the rules and regulations, as in effect on the date hereof, and we disavow any undertaking to advise you of any changes in law. |
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(b) |
We express no opinion as to enforceability of any right or obligation to the extent such right or obligation is subject to and limited by (i) the effect of bankruptcy, insolvency, reorganization, receivership, conservatorship, arrangement, moratorium, fraudulent transfer or other laws affecting or relating to the rights of creditors generally; (ii) rules governing the availability of specific performance, injunctive relief or other equitable remedies and general principles of equity, regardless of whether arising prior to or after the date hereof or considered in a proceeding in equity or at law; or (iii) the effect of federal and state securities laws and principles of public policy on the rights of indemnity and contribution. |
Page 3
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(c) |
We do not express any opinions herein concerning any laws other than the laws in their current forms of the States of Delaware and New York and the federal securities laws of the United States of America, and we express no opinion with respect to the laws of any other jurisdiction and expressly disclaim responsibility for advising you as to the effect, if any, that the laws of any other jurisdiction may have on the opinions set forth herein. |
We hereby consent to the filing of this opinion
as an exhibit to the Registration Statement and any amendments thereto, including any and all post-effective amendments, and to the reference
to our firm in the prospectus and any prospectus supplements relating thereto under the heading “Legal Matters.” In giving
such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities
Act or related rules and regulations of the Commission issued thereunder.
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Very truly yours, |
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/s/ PERKINS COIE LLP |
Exhibit 23.2
Independent
Registered Public Accounting Firm’s Consent
We consent to the incorporation by reference
in this Registration Statement of Energous Corporation on Form S-3 of our report dated March 28, 2024, with respect to our
audits of the financial statements of Energous Corporation as of December 31, 2023 and 2022 and for the years ended
December 31, 2023 and 2022 appearing in the Annual Report on Form 10-K of Energous Corporation for the year ended
December 31, 2023. We also consent to the reference to our firm under the heading “Experts” in the Prospectus,
which is part of this Registration Statement. We were dismissed as auditors on April 11, 2024, and, accordingly, we have not
performed any audit or review procedures with respect to any financial statements appearing in such Registration Statement for the
periods filed after the date of April 11, 2024.
/s/ Marcum llp
Marcum llp
San Jose, CA
December 13, 2024
Exhibit 107
Calculation of Filing Fees Table
Form S-3
(Form Type)
Energous Corporation
(Exact Name of Registrant as Specified in its Charter)
Table 1: Carry Forward Securities
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Security
Type |
Security
Class
Title |
Fee
Calculation
or Carry
Forward
Rule |
Amount
Registered |
Proposed
Maximum
Offering
Price Per
Unit |
Maximum
Aggregate
Offering Price |
Fee Rate |
Amount of
Registration
Fee |
Carry
Forward
Form
Type |
Carry
Forward
File
Number |
Carry
Forward
Initial
effective
date |
Filing Fee
Previously
Paid in
Connection
with
Unsold
Securities
to be
Carried
Forward |
| Carry Forward Securities |
| Carry Forward Securities |
Unallocated (Universal) Shelf |
(1) |
Rule 415(a)(6) |
(1) |
(2) |
$80,000,000 |
- |
- |
S-3 |
333- 261087 |
December 16, 2021 |
$7,416(3) |
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Total Offering Amounts |
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$80,000,000 |
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- |
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Total Fees Previously Paid |
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- |
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Total Fee Offsets |
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- |
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Net Fee Due |
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- |
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(1) There are being registered hereunder such indeterminate number
of shares of common stock, preferred stock, debt securities, warrants, and units comprised of one or more of the other securities that
may be offered pursuant hereto to be sold by the registrant from time to time at unspecified prices which shall have an aggregate initial
offering price not to exceed $80,000,000. There are also being registered hereunder an indeterminate number of shares of common stock
and preferred stock as shall be issuable upon conversion, exchange or exercise of any securities that provide for such issuance. In addition,
Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall also
cover any additional shares of the registrant’s securities that become issuable by reason of any share splits, share dividends
or similar transactions.
(2) The proposed maximum aggregate offering
price per class of security will be determined from time to time by the registrant in connection with the issuance by the registrant of
the securities registered hereunder and is not specified as to each class of security pursuant to General Instruction II.D. of Form S-3
under the Securities Act. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or
exchange of other securities, or that are issued in units. In no event will the aggregate offering price of all securities sold by the
registrant from time to time pursuant to this registration statement exceed $80,000,000.
(3) On November 15, 2021 the registrant
filed a Registration Statement on Form S-3 with the U.S. Securities and Exchange Commission to register $100,000,000 of securities
(the “Prior Registration Statement”) and paid the associated filing fee of $9,270. The registrant is carrying forward to this
registration statement $80,000,000 of unsold securities that were registered under the Prior Registration Statement and remain unsold
as of the date hereof (the “Unsold Securities”). Pursuant to Rule 415(a)(6) under the Securities Act,
the filing fee previously paid in connection with the Unsold Securities will continue to be applied to the Unsold Securities under this
registration statement.
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