As filed with the Securities and Exchange Commission
on November 2, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Royal Gold, Inc.
(Exact name of registrant as specified in its charter)
|
Delaware
(State or other jurisdiction of
incorporation or organization) |
84-0835164
(I.R.S. Employer
Identification Number) |
1144 15th Street, Suite 2500
Denver, Colorado 80202
(303) 573-1660
(Address, including zip code, and telephone number,
including area code of registrant’s principal executive offices)
Laura Gill
Vice President, Corporate Secretary and Chief
Compliance Officer
Royal Gold, Inc.
1144 15th Street, Suite 2500
Denver, Colorado 80202
(303) 573-1660
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Paul Hilton
Hogan Lovells US LLP
1601 Wewatta Street, Suite 900
Denver, Colorado 80202
(303) 899-7300
Approximate date of commencement of proposed
sale to the public: From time to time after this registration statement becomes effective.
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 earlier effective registration statement for the same offering: ¨
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box: x
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following
box: ¨
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| |
Large
accelerated filer x |
Accelerated
filer ¨ |
|
| |
Non-accelerated
filer ¨ |
Smaller
reporting company ¨ |
|
| |
Emerging
growth company¨ |
|
|
If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 7(a)(2)(B) of the Securities Act. ☐
PROSPECTUS
Debt Securities
Preferred Stock
Common Stock
Warrants
Depositary Shares
Purchase Contracts
Units
Royal Gold, Inc. may offer and sell debt
securities, preferred stock, common stock, warrants, depositary shares or purchase contracts, as well as units that include any of these
securities, from time to time in one or more offerings. These securities may, if applicable, be convertible into, or exercisable or exchangeable
for, other securities described in this prospectus. This prospectus provides you with a general description of the securities. In addition,
selling securityholders to be named in a prospectus supplement may offer and sell our securities from time to time.
Each time we or a selling securityholder sells
securities, we will provide a supplement to this prospectus that contains specific information about the offering and the amounts, prices
and terms of the securities. Any prospectus supplement may also add, update or change information contained in this prospectus. You should
carefully read this prospectus and the accompanying prospectus supplement before you invest in any of our securities.
The securities may be offered directly by us or
by selling securityholders, through agents designated from time to time by us or to or through underwriters or dealers, on an immediate,
continuous or delayed basis. If any agents, dealers or underwriters are involved in the sale of any of the securities, their names and
any applicable purchase price, fee, commission or discount arrangement between or among them will be set forth, or will be calculable
from the information set forth, in the applicable prospectus supplement. This prospectus may not be used to sell securities unless accompanied
by a prospectus supplement.
Royal Gold’s common stock is traded on The
Nasdaq Global Select Market under the symbol “RGLD.”
Investing in our securities involves risks.
See “Risk Factors” beginning on page 2 of this prospectus and the risks and uncertainties described in the documents
Royal Gold files with the Securities and Exchange Commission that are incorporated in this prospectus by reference.
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.
This prospectus is dated November 2, 2023.
TABLE OF CONTENTS
Page
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement
that we filed with the Securities and Exchange Commission (the “SEC”) utilizing an automatic “shelf” registration
process. Under this shelf registration process, we or selling securityholders may sell different types of securities described in this
prospectus in one or more offerings. This prospectus provides you with a general description of the securities we and any selling securityholder
may offer. Each time we or a selling securityholder sells securities, we will provide a prospectus supplement containing specific information
about the terms of that offering and 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 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, you should rely on the prospectus supplement. Before purchasing any securities, you should read
both this prospectus and any prospectus supplement together with additional information described under the headings “Where You
Can Find More Information” and “Incorporation of Certain Information by Reference.”
This prospectus contains summaries of certain
provisions contained in some of the contracts, agreements or other documents described herein, but reference is made to the actual documents
for complete information. All of the summaries are qualified in their entirety by reference to the actual documents. Copies of some of
the documents referred to herein have been filed or will be filed or incorporated by reference as exhibits to the registration statement
of which this prospectus is a part, and you may obtain copies of those documents as described in the section entitled “Where You
Can Find More Information.”
We are responsible for the information contained
and incorporated by reference in this prospectus, any prospectus supplement and any related free writing prospectus we prepare or authorize.
We have not authorized anyone to provide you with different information, and we take no responsibility for any other information that
others may give you. We are not making an offer of these securities in any jurisdiction where the offer is not permitted or in which the
person making such offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make an offer or solicitation.
The information in this prospectus, any prospectus supplement, any free writing prospectus and any document incorporated by reference
is only accurate as of the date of the respective documents in which the information appears. Our business, financial condition, results
of operations and prospects may have changed since those dates.
Unless we otherwise indicate or unless the context
requires, all references in this prospectus to:
| · | “Royal Gold,” the “Company,” “we,” “us” and “our” refer to Royal Gold, Inc.,
and where appropriate, its subsidiaries; |
| | | |
| | · | “common stock” means our common stock, par value $0.01 per share; and |
| | | |
| | · | “securities” means the debt securities, preferred stock, common stock, warrants, depositary shares, purchase contracts
and units described in this prospectus. |
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a “shelf”
registration statement on Form S-3 relating to the securities that may be offered by this prospectus. This prospectus is part of
the registration statement and does not contain all the information contained in the registration statement and the exhibits to the registration
statement. We strongly encourage you to read carefully the registration statement and the exhibits to the registration statement.
In addition, we file annual, quarterly and current
reports, proxy statements and other information with the SEC. The SEC maintains an internet site at www.sec.gov, which contains reports,
proxy and information statements and other information regarding issuers that file electronically with the SEC, including us. You may
also find our SEC filings under the heading “Investors” on our website at www.royalgold.com. The information on our website
is not a part of this prospectus or any prospectus supplement.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference”
information into this prospectus. This means that we can disclose important information to you by referring you to another document filed
separately with the SEC. The information incorporated by reference is considered to be part of this prospectus, and those documents that
are filed after the date of this prospectus and prior to the sale of securities to you pursuant to this prospectus will be considered
a part of this prospectus. Information that we file later with the SEC will automatically update and supersede the previously filed information
and the information contained in this prospectus. We incorporate by reference the documents listed below and any future filings we will
make with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), other than any portions of the respective filings that were furnished, rather than filed, pursuant to Item 2.02 or Item 7.01
of Current Reports on Form 8-K (including exhibits related thereto) or other applicable SEC rules, prior to the termination or completion
of the offerings under this prospectus:
| · | our Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed on February 16, 2023, including
portions of our Proxy Statement for the 2023 annual meeting of stockholders, filed on April 10, 2023, to the extent specifically
incorporated by reference therein; |
| | | |
| | · | our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2023, June 30, 2023, and September 30,
2023, filed on May 4, 2023, August 3, 2023, and November 2, 2023, respectively; |
| | | |
| | · | our Current Reports on Form 8-K filed on February 16, 2023, March 8, 2023, April 17, 2023, May 26, 2023,
June 30, 2023, August 28, 2023, and September 18, 2023; and |
| | | |
| | · | the description of our common stock contained in our Current Report on Form 8-K filed on April 30, 2015, as updated by
the description of our common stock filed as Exhibit 4.2 to our Quarterly Report on Form 10-Q for the quarter ended September 30,
2019, filed on November 7, 2019, and any amendments or reports filed for the purpose of updating such description. |
We will provide a copy of the documents we incorporate
herein by reference, at no cost, to any person who receives this prospectus, including any beneficial owner. You may request a copy of
any or all of these documents by writing or telephoning us at:
Royal Gold, Inc.
1144 15th Street, Suite 2500
Denver, CO 80202
Attn: Investor Relations
Telephone: (303) 573-1660
SPECIAL NOTE ABOUT FORWARD-LOOKING STATEMENTS
This prospectus, any prospectus supplement and
the documents incorporated herein by reference contain or will contain certain references to future expectations and other forward-looking
statements and information relating to us or to properties operated by others that are based on our beliefs and assumptions or those of
management of the companies that operate properties on which we have stream and royalty interests, as well as information currently available
to us. Such forward-looking statements include, among others, statements regarding future events and our future business, financial condition
and results of operations, and projected production and reserves of the operators of properties where we hold stream and royalty interests.
Additional written or oral forward-looking statements may be made by us from time to time in filings with the SEC or otherwise. Words
such as “may,” “could,” “should,” “would,” “believe,” “estimate,”
“expect,” “anticipate,” “plan,” “forecast,” “potential,” “intend,”
“continue,” “project” and variations of these words, comparable words and similar expressions generally indicate
forward-looking statements, which speak only as of the date the statement is made. Such forward-looking statements are within the meaning
of that term in Section 27A of the Securities Act of 1933, as amended (the “Securities Act”) and Section 21E of
the Exchange Act. Forward-looking statements inherently involve risks and uncertainties, some of which cannot be predicted or quantified.
Do not unduly rely on forward-looking statements.
Future events and actual results could differ
materially from those set forth in, contemplated by or underlying these forward-looking statements. Factors that could cause actual results
to differ materially from these forward-looking statements include, among others:
| · | a lower-price environment for gold, silver, copper,
or other metals; |
| · | operating activities or financial performance of
properties on which we hold stream or royalty interests, including inaccuracies in operators’ disclosures, variations between actual
and forecasted performance, operators’ ability to complete projects on schedule and as planned, operators’ changes to mine
plans and mineral reserves and mineral resources (including updated mineral reserve and mineral resource information), liquidity needs,
mining and environmental hazards and risks (including from climate change), labor disputes, distribution and supply chain disruptions,
permitting and licensing issues, or operational disruptions; |
| · | contractual issues involving our stream or royalty
agreements; |
| · | the timing of deliveries of metals from operators; |
| · | risks associated with doing business in foreign
countries; |
| · | increased competition for stream and royalty interests; |
| · | potential cyber-attacks, including ransomware; |
| · | our ability to identify, finance, and complete acquisitions; |
| · | adverse economic and market conditions; |
| · | impact of health epidemics and pandemics; |
| · | changes in laws or regulations governing us, operators
or operating properties; and |
| · | changes in management and key employees; |
as well as other factors described elsewhere in this prospectus, any
prospectus supplement, our most recent Annual Report on Form 10-K and in the other filings we make with the SEC. Most of these factors
are beyond our ability to predict or control. Forward-looking statements speak only as of the date on which they are made. We disclaim
any obligation to update any forward-looking statements made herein, except as required by law.
PROSPECTUS SUMMARY
This summary highlights selected information
contained elsewhere in this prospectus or incorporated by reference in this prospectus, and does not contain all of the information that
you need to consider in making your investment decision. You should carefully read the entire prospectus, the applicable prospectus supplement
and any related free writing prospectus, including the risks of investing in our securities discussed under the heading “Risk Factors”
contained in the applicable prospectus supplement and any related free writing prospectus, and under similar headings in the other documents
that are incorporated by reference into this prospectus. You should also carefully read the information incorporated by reference into
this prospectus, including our financial statements, and the exhibits to the registration statement of which this prospectus is a part.
The Company
Royal Gold, Inc. acquires and manages precious
metal streams, royalties and similar interests. We seek to acquire existing stream and royalty interests or to finance projects that are
in production or in the development stage in exchange for stream or royalty interests.
We manage our business under two segments:
| · | Acquisition and Management of Stream Interests — A metal stream is a purchase agreement that provides, in exchange for
an upfront deposit payment, the right to purchase all or a portion of one or more metals produced from a mine, at a price determined for
the life of the transaction by the purchase agreement. |
| · | Acquisition and Management of Royalty Interests — Royalties are non-operating interests in mining projects that provide
the right to a percentage of revenue or metals produced from the project after deducting specified costs, if any. |
We do not conduct mining operations on the properties
in which we hold stream and royalty interests, and we generally are not required to contribute to capital costs, exploration costs, environmental
costs or other operating costs on those properties.
We are continually reviewing opportunities to
grow our portfolio, whether through the creation or acquisition of new or existing stream or royalty interests or other acquisition activity.
We generally have acquisition opportunities in various stages of review. Our review process may include, for example, engaging consultants
and advisors to analyze an opportunity; analysis of technical, financial, legal, environmental, social, governance and other confidential
information regarding an opportunity; submission of indications of interest and term sheets; participation in preliminary discussions
and negotiations; and involvement as a bidder in competitive processes.
Our financial results are primarily tied to the
price of gold, silver, copper and other metals. Metal prices have fluctuated widely in recent years, and we expect this volatility to
continue. The marketability and the price of metals are influenced by numerous factors beyond our control, and significant changes in
metal prices can have a material effect on our revenue.
We were incorporated under the laws of the State
of Delaware on January 5, 1981. Our principal executive offices are located at 1144 15th Street, Suite 2500, Denver, Colorado
80202. Our telephone number is (303) 573-1660. We maintain a website at www.royalgold.com. Information presented or accessed through
our website is not incorporated into, or made a part of, this prospectus.
RISK FACTORS
An investment in our securities involves a high
degree of risk. You should carefully consider the risks incorporated by reference to our most recent Annual Report on Form 10-K,
any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K and all other information contained or incorporated
by reference into this prospectus, as updated by our subsequent filings under the Exchange Act, and the risk factors and other information
contained in the applicable prospectus supplement before acquiring any of such securities. The occurrence of any of these risks might
cause you to lose all or a part of your investment in the offered securities. See “Where You Can Find More Information” included
elsewhere in this prospectus. In addition, please see “Special Note About Forward-Looking Statements” in this prospectus,
where we describe additional uncertainties associated with our business and the forward-looking statements included or incorporated by
reference in this prospectus.
USE OF PROCEEDS
Unless
we specify otherwise in a prospectus supplement, the net proceeds from the sale of securities offered from time to time using this prospectus
will be used for our general corporate purposes, which may include repayment or refinancing of debt, acquisitions or working capital.
If net proceeds from a specific offering will be used to repay indebtedness, the applicable prospectus supplement will describe the relevant
terms of the debt to be repaid. Pending any specific application, we may initially invest funds in cash and equivalents or apply
them to the reduction of short-term indebtedness.
We will not receive proceeds from sales by selling
securityholders except as otherwise specified in an applicable prospectus supplement.
DESCRIPTION OF DEBT SECURITIES
We may issue, from time to time, debt securities,
in one or more series. The debt securities we offer will be issued under an indenture between us and the trustee named in the indenture,
which we refer to as the “base indenture.” As used in this prospectus, “debt securities” means our direct general
obligations and may include debentures, notes, bonds or other evidences of indebtedness that we issue and a trustee authenticates and
delivers under the base indenture. The prospectus supplement relating to any offering of debt securities will describe more specific terms
of the debt securities being offered.
Debt securities will be issued under the base
indenture in one or more series established pursuant to a supplemental indenture or a resolution duly adopted by our board of directors
or a duly authorized committee thereof. The base indenture does not limit the aggregate principal amount of debt securities that may be
issued thereunder, or the amount of any series that may be issued. In this prospectus, we refer to the base indenture together with each
applicable supplemental indenture or resolution establishing the applicable series of debt securities as the “indenture.”
The indenture will be subject to, and governed by, the Trust Indenture Act of 1939.
The summary set forth below does not purport to
be complete and is subject to and qualified in its entirety by reference to the base indenture and the supplemental indenture or board
resolution (including the form of debt security) relating to the applicable series of debt securities, the form of each of which is or
will be filed or incorporated by reference as an exhibit to the registration statement of which this prospectus is a part and incorporated
herein by reference.
General Terms of the Indenture
The indenture does not limit the amount of debt
securities that we may issue. It provides that we may issue debt securities up to the principal amount that we may authorize, and they
may be in any currency or currency unit that we may designate. Except for the limitations on consolidation, merger and sale of all or
substantially all of our assets contained in the indenture, the terms of the indenture do not contain any covenants or other provisions
designed to give holders of any debt securities protection against changes in our operations, financial condition or transactions involving
us. For each series of debt securities, any restrictive covenants for those debt securities will be described in the applicable prospectus
supplement for those debt securities.
We may issue the debt securities issued under
the indenture as “discount securities,” which means they may be sold at a discount below their stated principal amount. These
debt securities, as well as other debt securities that are not issued at a discount, may, for United States federal income tax purposes,
be treated as if they were issued with “original issue discount,” or OID, because of interest payment and other characteristics.
Special United States federal income tax considerations applicable to debt securities issued with original issue discount will be described
in more detail in any applicable prospectus supplement.
You should refer to the prospectus supplement
relating to a particular series of debt securities for a description of the following terms of the debt securities offered by that prospectus
supplement and by this prospectus:
| · | the title of the series of debt securities; |
| · | the maximum aggregate principal amount, if any, established for the debt securities, provided, however, that such amount may from
time to time be increased by a resolution of the board of directors; |
| · | the price or prices at which the debt securities will be sold; |
| · | the person to whom any interest on a debt security will be payable, if other than the person in whose name that debt security (or
one or more predecessor debt securities) is registered at the close of business on the regular record date for such interest; |
| · | the date or dates on which the principal and premium, if any, of any debt securities will be payable or the method used to determine
or extend those dates; |
| · | the rate or rates at which any debt securities will bear interest, if any, or the method by which such rate or rates shall be determined,
the date or dates from which any such interest will accrue, or the method by which such date or dates shall be determined, the interest
payment dates on which any such interest will be payable and the regular record date, if any, for any such interest payable on any interest
payment date, or the method by which such date or dates shall be determined, and the basis upon which interest shall be calculated if
other than that of a 360-day year of twelve 30-day months, the right, if any, to extend or defer interest payments and the duration of
such extension or deferral; |
| · | the place or places where the principal of and any premium and interest on any debt securities will be payable, the place or places
where the debt securities may be presented for registration of transfer or exchange, the place or places where notices and demands to
or upon us in respect of the debt securities may be made and the manner in which any payment may be made; |
| · | the period or periods within which or the date or dates on which, the price or prices at which, the currency or currency units in
which, and the terms and conditions upon which any debt securities may be redeemed, in whole or in part, at our option and, if other than
by a resolution of the board of directors, the manner in which any election by us to redeem the debt securities will be evidenced; |
| · | our obligation or right, if any, to redeem or purchase any debt securities pursuant to any sinking fund, amortization or analogous
provisions or at the option of the holder thereof and the period or periods within which, the price or prices at which, the currency or
currency units in which, and the terms and conditions upon which any debt securities will be redeemed or purchased, in whole or in part,
pursuant to such obligation; |
| · | if other than denominations of $2,000 and any integral multiple of $1,000 in excess thereof, the denominations in which any debt securities
will be issuable; |
| · | if other than the trustee, the identity of each security registrar and/or paying agent; |
| · | if the amount of principal of or premium, if any, or interest on any debt securities may be determined with reference to a financial
or economic measure or index or pursuant to a formula, the manner in which such amounts will be determined; |
| · | if other than U.S. dollars, the currency, currencies or currency units in which the principal of or premium, if any, or interest on
any debt securities will be payable and the manner of determining the equivalent thereof in U.S. dollars for any purpose; |
| · | if the principal of or premium, if any, or interest on any debt securities is to be payable, at our election or the election of the
holder thereof, in one or more currencies or currency units other than that or those in which such debt securities are stated to be payable,
the currency, currencies or currency units in which the principal of or premium, if any, or interest on such debt securities as to which
such election is made will be payable, the periods within which or the dates on which and the terms and conditions upon which such election
is to be made and the amount so payable (or the manner in which such amount will be determined); |
| · | if the provisions of the indenture relating to satisfaction and discharge thereof shall apply to the debt securities of that series
as set forth therein, or if provisions for the satisfaction and discharge of the indenture other than as set forth therein shall apply
to the debt securities of that series; |
| · | if other than the entire principal amount thereof, the portion of the principal amount of any debt securities which will be payable
upon declaration of acceleration of the maturity thereof pursuant to the indenture or the method by which such portion shall be determined; |
| · | if the principal amount payable at the stated maturity of any debt securities will not be determinable as of any one or more dates
prior to the stated maturity, the amount which will be deemed to be the principal amount of such debt securities as of any such date for
any purpose thereunder or hereunder, including the principal amount thereof which will be due and payable upon any maturity other than
the stated maturity or which will be deemed to be outstanding as of any date prior to the stated maturity (or, in any such case, the manner
in which such amount deemed to be the principal amount will be determined); |
| · | if other than by a resolution of the board of directors, the manner in which any election by us to defease any debt securities pursuant
to the indenture will be evidenced; whether any debt securities other than debt securities denominated in U.S. dollars and bearing interest
at a fixed rate are to be subject to the defeasance provisions of the indenture; or, in the case of debt securities denominated in U.S.
dollars and bearing interest at a fixed rate, if applicable, that the debt securities, in whole or any specified part, will not be defeasible
pursuant to the indenture; |
| · | if applicable, that any debt securities shall be issuable in whole or in part in the form of one or more global securities and, in
such case, the respective depositaries for such global securities, the form of any legend or legends which shall be borne by any such
global security in addition to or in lieu of that set forth in the indenture and any circumstances in which any such global security may
be exchanged in whole or in part for debt securities registered, and any transfer of such global security in whole or in part may be registered,
in the name or names of persons other than the depositary for such global security or a nominee thereof; |
| · | any addition to, deletion from or change in the events of default applicable to any debt securities and any change in the right of
the trustee or the requisite holders of such debt securities to declare the principal amount thereof due and payable; |
| · | any addition to, deletion from or change in the covenants applicable to debt securities; |
| · | the terms of any right to convert or exchange the debt securities into any other securities or property of ours or of any other corporation
or person, and the additions or changes, if any, to the indenture with respect to the debt securities to permit or facilitate such conversion
or exchange; |
| · | whether the debt securities will be guaranteed by any persons and, if so, the identity of such persons, the terms and conditions upon
which such debt securities will be guaranteed and, if applicable, the terms and conditions upon which such guarantees may be subordinated
to other indebtedness of the respective guarantors; |
| · | whether the debt securities will be secured by any collateral and, if so, the terms and conditions upon which such debt securities
will be secured and, if applicable, upon which such liens may be subordinated to other liens securing other indebtedness of us or of any
guarantor; |
| · | whether the debt securities will be issued in a transaction registered under the Securities Act and any restriction or condition on
the transferability of the debt securities; |
| · | the exchanges, if any, on which the debt securities may be listed; and |
| · | any other terms of the debt securities (which terms will not be inconsistent with the provisions of the indenture, except as permitted
thereunder). |
Conversion or Exchange Rights
Debt securities may be convertible into or exchangeable
for shares of our equity securities or other securities. The terms and conditions of conversion or exchange will be stated in the applicable
prospectus supplement. The terms will include, among others, the following:
| · | the conversion or exchange price; |
| · | the conversion or exchange period; |
| · | provisions regarding our ability or the ability of any holder to convert or exchange the debt securities; |
| · | events requiring adjustment to the conversion or exchange price; and |
| · | provisions affecting conversion or exchange in the event of our redemption of the debt securities. |
Consolidation, Merger or Sale
The terms of the indenture prevent us from consolidating
or merging with or into, or conveying, transferring or leasing all or substantially all of our assets to, any person, unless (i) we
are the continuing entity or the successor corporation or person to which our assets are conveyed, transferred or leased is a corporation,
limited liability company or other entity organized under the laws of the United States, any state of the United States or the District
of Columbia and it expressly assumes our obligations under the debt securities and the indenture and (ii) immediately after completing
such a transaction, no default or event of default under the indenture has occurred and is continuing. If we consolidate or merge with
or into any other person or sell, transfer, lease or convey all or substantially all of our properties and assets in accordance with the
indenture, the successor will be substituted for us in the indenture, with the same effect as if it had been an original party to the
indenture. As a result, the successor may exercise our rights and powers under the indenture, and we will be released from all our liabilities
and obligations under the indenture and under the debt securities.
Events of Default
The indenture provides that the following will
be “events of default” with respect to any series of debt securities:
| (1) | default in the payment of any installment of interest on any debt securities of such series for 30 days after becoming due; |
| (2) | default in the payment of principal of or premium, if any, on any debt securities of such series when it becomes due and payable at
its stated maturity, upon optional redemption, upon declaration or otherwise; |
| (3) | default in the performance, or breach, of any covenant or agreement of ours in the indenture with respect to the debt securities of
such series (other than a covenant or agreement, a default in the performance of which or a breach of which is elsewhere in the indenture
specifically dealt with or that has expressly been included in the indenture solely for the benefit of a series of debt securities other
than such series), which continues for a period of 90 days after written notice to us by the trustee or to us and the trustee by the holders
of at least 25% in aggregate principal amount of the outstanding debt securities of that series; |
| (4) | we pursuant to or within the meaning of the Bankruptcy Law: |
| · | commence a voluntary case or proceeding; |
| · | consent to the entry of an order for relief against us in an involuntary case or proceeding; |
| · | consent to the appointment of a custodian of us or for all or substantially all of our property; |
| · | make a general assignment for the benefit of our creditors; |
| · | file a petition in bankruptcy or answer or consent seeking reorganization or relief; |
| · | consent to the filing of such petition or the appointment of or taking possession by a custodian; or |
| · | take any comparable action under any foreign laws relating to insolvency; |
| (5) | a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: |
| · | is for relief against us in an involuntary case, or adjudicates us insolvent or bankrupt; |
| · | appoints a custodian of us or for all or substantially all of our property; or |
| · | orders the winding-up or liquidation of us (or any similar relief is granted under any foreign laws); |
| · | and the order or decree remains unstayed and in effect for 90 consecutive days; or |
| (6) | any other event of default provided with respect to debt securities of such series occurs. |
“Bankruptcy Law” means Title 11, United
States Code or any similar federal or state or foreign law for the relief of debtors. “Custodian” means any custodian, receiver,
trustee, assignee, liquidator or other similar official under any Bankruptcy Law.
If an event of default with respect to debt securities
of any series (other than an event of default relating to certain events of bankruptcy, insolvency, or reorganization of us) occurs and
is continuing, the trustee by notice to us, or the holders of at least 25% in aggregate principal amount of the outstanding debt securities
of such series by notice to us and the trustee, may, and the trustee at the request of these holders will, declare the principal of and
premium, if any, and accrued and unpaid interest on all the debt securities of such series to be due and payable. Upon such a declaration,
such principal, premium and accrued and unpaid interest will be due and payable immediately. If an event of default relating to certain
events of bankruptcy, insolvency, or reorganization of us occurs and is continuing, the principal of and premium, if any, and accrued
and unpaid interest on the debt securities of such series will become and be immediately due and payable without any declaration or other
act on the part of the trustee or any holders.
The holders of not less than a majority in aggregate
principal amount of the outstanding debt securities of any series may rescind a declaration of acceleration and its consequences, if we
have deposited certain sums with the trustee and all events of default with respect to the debt securities of such series, other than
the non-payment of the principal or interest which have become due solely by such acceleration, have been cured or waived, as provided
in the indenture.
An event of default for a particular series of
debt securities does not necessarily constitute an event of default for any other series of debt securities issued under the indenture.
We are required to furnish the trustee annually
within 120 days after the end of our fiscal year a statement by one of our officers to the effect that, to the best knowledge of such
officer, we are not in default in the fulfillment of any of our obligations under the indenture or, if there has been a default in the
fulfillment of any such obligation, specifying each such default and the nature and status thereof.
No holder of any debt securities of any series
will have any right to institute any judicial or other proceeding with respect to the indenture, or for the appointment of a receiver
or trustee, or for any other remedy unless:
| (1) | an event of default has occurred and is continuing and such holder has given the trustee prior written notice of such continuing event
of default with respect to the debt securities of such series; |
| (2) | the holders of not less than 25% of the aggregate principal amount of the outstanding debt securities of such series have requested
the trustee to institute proceedings in respect of such event of default; |
| (3) | the trustee has been offered indemnity reasonably satisfactory to it against its costs, expenses and liabilities in complying with
such request; |
| (4) | the trustee has failed to institute proceedings 60 days after the receipt of such notice, request and offer of indemnity; and |
| (5) | no direction inconsistent with such written request has been given for 60 days by the holders of a majority in aggregate principal
amount of the outstanding debt securities of such series. |
The holders of a majority in aggregate principal
amount of outstanding debt securities of a series will have the right, subject to certain limitations, to direct the time, method and
place of conducting any proceeding for any remedy available to the trustee with respect to the debt securities of that series or exercising
any trust or power conferred to the trustee, and to waive certain defaults. The indenture provides that if an event of default occurs
and is continuing, the trustee will exercise such of its rights and powers under the indenture, and use the same degree of care and skill
in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
Subject to such provisions, the trustee will be under no obligation to exercise any of its rights or powers under the indenture at the
request of any of the holders of the debt securities of a series unless they will have offered to the trustee security or indemnity reasonably
satisfactory to the trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request.
Discharge, Defeasance and Covenant Defeasance
We can discharge or decrease our obligations under
the indenture as stated below.
We may discharge obligations to holders of any
series of debt securities that have not already been delivered to the trustee for cancellation and that have either become due and payable
or are by their terms to become due and payable, or are scheduled for redemption, within one year. We may effect a discharge by irrevocably
depositing with the trustee, in trust, funds in U.S. dollars in an amount sufficient to pay the entire indebtedness including, but not
limited to, the principal and premium, if any, and interest to the date of such deposit (if the debt securities have become due and payable)
or to the maturity thereof or the redemption date of the debt securities of that series, as the case may be. We may direct the trustee
to invest such funds in U.S. Treasury securities with a maturity of one year or less or in a money market fund that invests solely in
short-term U.S. Treasury securities.
The indenture provides that we may elect either
(1) to defease and be discharged from any and all obligations with respect to the debt securities of a series (except for, among
other things, obligations to register the transfer or exchange of the debt securities, to replace temporary or mutilated, destroyed, lost
or stolen debt securities, to maintain an office or agency with respect to the debt securities and to hold moneys for payment in trust)
(“legal defeasance”) or (2) to be released from our obligations to comply with the restrictive covenants under the indenture,
and any omission to comply with such obligations will not constitute a default or an event of default with respect to the debt securities
of a series and clauses (3) and (6) under “—Events of Default” will no longer be applied (“covenant
defeasance”). Legal defeasance or covenant defeasance, as the case may be, will be conditioned upon, among other things, the irrevocable
deposit by us with the trustee, in trust, of an amount in U.S. dollars, or U.S. government obligations, or both, applicable to the debt
securities of that series which through the scheduled payment of principal and interest in accordance with their terms will provide money
in an amount sufficient to pay the principal or premium, if any, and interest on the debt securities on the scheduled due dates therefor.
If we effect covenant defeasance with respect
to the debt securities of any series, the amount in U.S. dollars, or U.S. government obligations, or both, on deposit with the trustee
will be sufficient, in the opinion of an independent public accountant or financial advisor, to pay amounts due on the debt securities
of that series at the time of the stated maturity but may not be sufficient to pay amounts due on the debt securities of that series at
the time of the acceleration resulting from such event of default. However, we would remain liable to make payment of such amounts due
at the time of acceleration.
We will be required to deliver to the trustee
an opinion of counsel that the deposit and related defeasance will not cause the holders and beneficial owners of the debt securities
of that series to recognize income, gain or loss for federal income tax purposes. In the case of legal defeasance, the opinion we deliver
must be based on a ruling of the Internal Revenue Service issued, or a change in U.S. federal income tax law occurring, after the date
of the indenture.
We may exercise our legal defeasance option notwithstanding
our prior exercise of our covenant defeasance option.
Modification and Waivers
Modification and amendments of the indenture and
the debt securities of any series may be made by us and the trustee with the consent of the holders of not less than a majority in aggregate
principal amount of the outstanding debt securities of that series affected thereby; provided, however, that no such modification or amendment
may, without the consent of the holder of each outstanding debt security of that series affected thereby:
| · | change the stated maturity of the principal of, or installment of interest on, any debt security; |
| · | reduce the principal amount of any debt security or reduce the amount of the principal of any debt security which would be due and
payable upon a declaration of acceleration of the maturity thereof or reduce the rate of interest on any debt security; |
| · | reduce any premium payable on the redemption of any debt security or change the date on which any debt security may or must be redeemed
(it being understood that a change to any notice requirement with respect to such date shall not be deemed to be a change of such date); |
| · | change the coin or currency in which the principal of, premium, if any, or interest on any debt security is payable; |
| · | impair the right of any holder to institute suit for the enforcement of any payment on or after the stated maturity of any debt security
(or, in the case of redemption, on or after the redemption date); |
| · | reduce the percentage in principal amount of the outstanding debt securities, the consent of whose holders is required in order to
take certain actions; |
| · | reduce the requirements for quorum or voting by holders of debt securities in the indenture or the debt security; |
| · | modify any of the provisions in the indenture regarding the waiver of past defaults and the waiver of certain covenants by the holders
of debt securities except to increase any percentage vote required or to provide that certain other provisions of the indenture cannot
be modified or waived without the consent of the holder of each debt security affected thereby; |
| · | make any change that adversely affects the right to convert or exchange any debt security or decreases the conversion or exchange
rate or increases the conversion price of any convertible or exchangeable debt security, unless such decrease or increase is permitted
by the terms of the debt securities; or |
| · | modify any of the above provisions. |
We and the trustee may, without the consent of
any holders, modify or amend the terms of the indenture and the debt securities of any series with respect to the following:
| · | to add to our covenants for the benefit of holders of the debt securities of all or any series or to surrender any right or power
conferred upon us; |
| · | to evidence the succession of another person to, and the assumption by the successor of our covenants, agreements and obligations
under, the indenture pursuant to the covenant described under “—Consolidation, Merger or Sale”; |
| · | to add any additional events of default for the benefit of holders of the debt securities of all or any series; |
| · | to add one or more guarantees for the benefit of holders of the debt securities; |
| · | to secure the debt securities; |
| · | to add or appoint a successor or separate trustee or other agent; |
| · | to provide for the issuance of additional debt securities of any series; |
| · | to establish the form or terms of debt securities of any series as permitted by the indenture; |
| · | to comply with the rules of any applicable securities depository; |
| · | to provide for uncertificated debt securities in addition to or in place of certificated debt securities; |
| · | to add to, change or eliminate any of the provisions of the indenture in respect of one or more series of debt securities; provided
that any such addition, change or elimination shall (i) not apply to any debt security of any series created prior to the execution
of the applicable supplemental indenture and entitled to the benefit of such provision and not modify the rights of the holder of any
such debt security with respect to such provision, or (ii) become effective only when there are no outstanding debt securities described
in clause (i); |
| · | become effective only when there is no outstanding debt security of any series created prior to the execution of such supplemental
indenture that is entitled to the benefit of such provision and as to which such supplemental indenture would apply; |
| · | to cure any ambiguity, omission, defect or inconsistency; |
| · | to change any other provision; provided that the change does not adversely affect the interests of the holders of debt securities
of any outstanding series in any material respect; |
| · | to supplement any of the provisions of the indenture to such extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of debt securities pursuant to the indenture; provided that any such action shall not adversely affect the interests
of the holders of debt securities of such series or any other series of debt securities in any material respect; |
| · | to comply with the rules or regulations of any securities exchange or automated quotation system on which any of the debt securities
may be listed or traded; |
| · | to conform any provision of the indenture, any supplemental indenture, one or more series of debt securities or any related guarantees
or security documents, if any, to the description of such debt securities contained in the prospectus, prospectus supplement, offering
memorandum or similar document with respect to the offering of the debt securities of such series to the extent that such description
was intended to be a substantially verbatim recitation of a provision in the indenture, such debt securities or any related security documents;
and |
| · | to add to, change or eliminate any provision of the indenture as shall be necessary or desirable in accordance with any amendments
to the Trust Indenture Act. |
The holders of at least a majority in aggregate
principal amount of the outstanding debt securities of any series may, on behalf of the holders of all debt securities of that series,
waive compliance by us with certain restrictive provisions of the indenture. The holders of not less than a majority in aggregate principal
amount of the outstanding debt securities of a series may, on behalf of the holders of all debt securities of that series, waive any past
default and its consequences under the indenture with respect to the debt securities of that series, except a default (1) in the
payment of principal or premium, if any, or interest on debt securities of that series or (2) in respect of a covenant or provision
of the indenture that cannot be modified or amended without the consent of the holder of each debt security of that series. Upon any such
waiver, such default will cease to exist, and any event of default arising therefrom will be deemed to have been cured, for every purpose
of the indenture; however, no such waiver will extend to any subsequent or other default or event of default or impair any rights consequent
thereon.
Registered Global Securities and Book Entry System
The debt securities may be issued in whole or
in part in book-entry form and may be represented by one or more fully registered global securities. We will deposit any registered global
securities with a depositary or with a nominee for a depositary identified in the applicable prospectus supplement and registered in the
name of such depositary or nominee. In such case, we will issue one or more registered global securities denominated in an amount equal
to the aggregate principal amount of all of the debt securities to be issued and represented by such registered global security or securities.
This means that we will not issue certificates to each holder.
Unless and until it is exchanged in whole or in
part for debt securities in definitive registered form, a registered global security may not be transferred except as a whole:
| · | by the depositary for the registered global security to its
nominee; |
| · | by a nominee of the depositary to the depositary or another
nominee of the depositary; or |
| · | by the depositary or its nominee to a successor of the depositary
or a nominee of the successor. |
The prospectus supplement relating to a series
of debt securities will describe the specific terms of the depositary arrangement involving any portion of the series represented by a
registered global security. We anticipate that the following provisions will apply to all depositary arrangements for debt securities:
| · | ownership of beneficial interests in a registered global security
will be limited to persons that have accounts with the depositary for such registered global security, these persons being referred to
as “participants,” or persons that may hold interests through participants; |
| · | upon the issuance of a registered global security, the depositary
for the registered global security will credit, on its book-entry registration and transfer system, the participants’ accounts
with the respective principal amounts of the debt securities represented by the registered global security beneficially owned by the
participants; |
| · | any dealers, underwriters, or agents participating in the distribution
of the debt securities will designate the accounts to be credited; and |
| · | ownership of beneficial interest in the registered global security
will be shown on, and the transfer of the ownership interest will be effected only through, records maintained by the depositary for
the registered global security for interests of participants, and on the records of participants for interests of persons holding through
participants. |
The laws of some states may require that specified
purchasers of securities take physical delivery of the securities in definitive form. These laws may limit the ability of those persons
to own, transfer or pledge beneficial interests in registered global securities.
So long as the depositary for a registered global
security, or its nominee, is the registered owner of the registered global security, the depositary or such nominee, as the case may be,
will be considered the sole owner or holder of the debt securities represented by the registered global security for all purposes under
the indenture. Except as stated below, owners of beneficial interests in a registered global security:
| · | will not be entitled to have the debt securities represented
by a registered global security registered in their names; |
| · | will not receive or be entitled to receive physical delivery
of the debt securities in the definitive form; and |
| · | will not be considered the owners or holders of the debt securities
under the indenture. |
Accordingly, each person owning a beneficial interest
in a registered global security must rely on the procedures of the depositary for the registered global security and, if the person is
not a participant, on the procedures of a participant through which the person owns its interest, to exercise any rights of a holder under
the indenture.
We understand that under existing industry practices,
if we request any action of holders or if an owner of a beneficial interest in a registered global security desires to give or take any
action that a holder is entitled to give or take under the indenture, the depositary for the registered global security would authorize
the participants holding the relevant beneficial interests to give or take the action, and the participants would authorize beneficial
owners owning through the participants to give or take the action or would otherwise act upon the instructions of beneficial owners holding
through them.
We will make payments of principal and premium,
if any, and interest, if any, on debt securities represented by a registered global security registered in the name of a depositary or
its nominee to the depositary or its nominee, as the case may be, as the registered owners of the registered global security. Neither
we nor the trustee, or any other agent of ours or the trustee will be responsible or liable for any aspect of the records relating to,
or payments made on account of, beneficial ownership interests in the registered global security or for maintaining, supervising or reviewing
any records relating to the beneficial ownership interests.
We expect that the depositary for any debt securities
represented by a registered global security, upon receipt of any payments of principal and premium, if any, and interest, if any, in respect
of the registered global security, will immediately credit participants’ accounts with payments in amounts proportionate to their
respective beneficial interests in the registered global security as shown on the records of the depositary. We also expect that standing
customer instructions and customary practices will govern payments by participants to owners of beneficial interests in the registered
global security held through the participants, as is now the case with the securities held for the accounts of customers in bearer form
or registered in “street name.” We also expect that any of these payments will be the responsibility of the participants.
Concerning the Trustee
The indenture provides that there may be more
than one trustee under the indenture, each for one or more series of debt securities. If there are different trustees for different series
of debt securities, each trustee will be a trustee of a trust under the indenture separate and apart from the trust administered by any
other trustee under that indenture. Except as otherwise indicated in this prospectus or any prospectus supplement, any action permitted
to be taken by a trustee may be taken by such trustee only on the one or more series of debt securities for which it is the trustee under
the indenture. Any trustee under the indenture may resign or be removed from one or more series of debt securities.
The indenture provides that, except during the
continuance of an event of default, the trustee will perform only such duties as are specifically set forth in the indenture. During the
existence of an event of default, the trustee will exercise those rights and powers vested in it under the indenture and use the same
degree of care and skill in its exercise as a prudent person would exercise under the circumstances in the conduct of such person’s
own affairs.
The trustee may engage in other transactions with
us. If it acquires any conflicting interest relating to any duties concerning the debt securities, however, it must eliminate the conflict
or resign as trustee.
No Individual Liability of Incorporators, Stockholders, Officers
or Directors
The indenture provides that no past, present or
future incorporator, stockholder, officer or director of our, or any successor corporation, in their capacity as such, shall have any
individual liability for any of our obligations, covenants or agreements under the debt securities or the indenture.
Governing Law
The indenture and the debt securities will be
governed by, and construed in accordance with, the laws of the State of New York.
DESCRIPTION OF CAPITAL STOCK
General
The following description of our capital stock,
together with the additional information in any applicable prospectus supplement, summarizes the material terms and provisions of our
capital stock and various provisions of our restated certificate of incorporation, as amended (the “certificate of incorporation”),
and amended and restated bylaws, as amended (the “bylaws”). For additional information about the terms of our capital stock,
please refer to our certificate of incorporation and bylaws that are incorporated by reference into the registration statement of which
this prospectus is a part. The terms of these securities may also be affected by the general corporation law of the state of Delaware.
The summary below is not intended to be complete and is qualified by reference to the provisions of applicable law and our certificate
of incorporation and bylaws.
Our
authorized capital stock consists of 200,000,000 shares of common stock, par value $0.01 per share and 10,000,000 shares of preferred
stock, par value $0.01 per share. As of October 26, 2023, there were 65,692,012 issued and outstanding shares of common stock
and no shares of preferred stock issued or outstanding.
Common Stock
Holders of common stock are entitled to one vote
for each share held in the election of directors and on all other matters submitted to a vote of stockholders and do not have any cumulative
voting rights. Holders of common stock are entitled to receive ratably such dividends, if any, when, as and if declared by the board of
directors, out of funds legally available therefor, subject to any preferential dividend rights of any outstanding preferred stock.
Upon the liquidation, dissolution or winding up
of the Company, the holders of common stock are entitled to receive ratably the net assets of the Company available after payment of all
debts and other liabilities, subject to the prior rights of any outstanding preferred stock. Holders of common stock have no preemptive,
subscription, redemption or conversion rights. The outstanding shares of common stock are, and the shares offered by us by any prospectus
supplement accompanying this prospectus will be, when issued and paid for, fully paid and non-assessable.
Preferred Stock
Our preferred stock may be issued from time to
time in one or more series, without stockholder approval. Subject to limitations prescribed by law, the board of directors is authorized
to determine the voting powers (if any), designations, preferences and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, for each series of preferred stock that may be issued, and to fix the number of shares
of each such series. Thus, the board of directors, without stockholder approval, could authorize the issuance of preferred stock with
voting, conversion and other rights that could adversely affect the voting power and other rights of holders of common stock or other
series of preferred stock or that could have the effect of delaying, deferring or preventing a change in control of the Company.
Preferred stock will be issued under a certificate
of designations relating to each series of preferred stock, subject to our certificate of incorporation. When a particular series of preferred
stock is offered, the prospectus supplement will describe the specific terms of the securities, which may include:
| · | the title and stated value of the preferred stock; |
| · | the number of shares of the preferred stock offered, the dividend
and liquidation preference per share and the offering price of the preferred stock; |
| · | the dividend rate(s), period(s) and/or payment date(s) or
method(s) of calculation of such rates, periods or dates applicable to the preferred stock; |
| · | whether the preferred stock will have preemptive rights; |
| · | the procedures for auction and remarketing, if any, of the preferred
stock; |
| · | the sinking fund provisions, if applicable, for the preferred
stock; |
| · | the redemption provisions, if applicable, for the preferred
stock; |
| · | whether the preferred stock will be convertible into or exchangeable
for other securities and, if so, the terms and conditions of conversion or exchange, including the conversion price or exchange ratio
and the conversion or exchange period (or the method of determining the same); |
| · | whether the preferred stock will have voting rights and the
terms of the voting rights, if any; |
| · | whether the preferred stock will be listed on any securities
exchange; |
| · | the transfer agent for the preferred stock; |
| · | whether the preferred stock will be issued with any other securities
and, if so, the amount and terms of such securities; and |
| · | any other specific terms, preferences or rights of, or limitations
or restrictions on, the preferred stock. |
Anti-Takeover Provisions
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 with any interested stockholder 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 (i) by persons who are directors and also officers and
(ii) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject
to the plan will be tendered in a tender or exchange offer; or |
| · | 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 the following:
| · | 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; |
| · | 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, controlling, or controlled
by any of these entities or persons.
Certificate of Incorporation and Bylaws Provisions
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 stockholders. These provisions are summarized in the following paragraphs.
Classified
Board of Directors. Our certificate of incorporation provides for our board of directors to be divided into three
classes of directors serving staggered three-year terms. The classification of the board of directors has the effect of requiring at least
two annual stockholder meetings, instead of one, to replace a majority of the members of the board of directors.
Authorized
but Unissued or Undesignated Capital Stock. Our authorized capital stock consists of 200,000,000 shares of
common stock and 10,000,000 shares of preferred stock. The authorized but unissued (and in the case of preferred stock, undesignated)
stock may be issued by the board of directors in one or more transactions. In this regard, our certificate of incorporation grants the
board of directors broad power to establish the rights and preferences of authorized and unissued preferred stock. The issuance of shares
of preferred stock pursuant to the board of directors’ authority described above could decrease the amount of earnings and assets
available for distribution to holders of common stock and adversely affect the rights and powers, including voting rights, of such holders
and may have the effect of delaying, deferring or preventing a change in control. The board of directors does not currently intend to
seek stockholder approval prior to any issuance of preferred stock, unless otherwise required by law.
Special
Meetings of Stockholders. Our bylaws provide that special meetings of our stockholders may be called only by our
chairman of the board of directors, chief executive officer, president or board of directors. Stockholders do not have the right to call
special meetings or to bring business before special meetings.
Stockholder
Action by Written Consent. Under Delaware law, unless otherwise provided in a corporation’s certificate of
incorporation, any action that may be taken at a meeting of stockholders may be taken without a meeting and without prior notice if a
written consent is signed by the holders of the minimum number of votes necessary to authorize the action at a meeting at which all shares
entitled to vote were present and voted. Our bylaws provide the same standard for written consent and require a stockholder seeking to
take action by written consent to give written notice to our secretary requesting that the board of directors fix a record date and include
in such notice certain specified information and representations regarding (i) each person whom the stockholder proposes to nominate
for election or re-election as a director, (ii) any other business the stockholder proposes to take by written consent, (iii) the
stockholder giving notice and the beneficial owner, if any, or any affiliate or associate thereof, on whose behalf the nomination or proposal
is made (collectively, the “Proposing Stockholder”), (iv) any agreements, arrangements and understandings between the
Proposing Stockholder and any other person in connection with the proposal of such business or nominations by the stockholder, (v) whether
the Proposing Stockholder is a holder of record of stock and entitled to vote, and (vi) whether the Proposing Stockholder is or intends
to be part of a group that intends to solicit consents from stockholders.
Notice
Procedures. Our bylaws establish advance notice procedures with regard to all stockholder proposals to be brought
before meetings of our stockholders, including proposals relating to the nomination of candidates for election as directors and amendments
to our certificate of incorporation or bylaws. These procedures provide that, as to matters not sought to be included in the Company’s
proxy statement, the stockholder must give timely notice of such stockholder proposals in writing to our secretary prior to the meeting
and update or supplement such notice, as required by our bylaws. All stockholder proposals must also otherwise be a proper matter for
stockholder action pursuant to our certificate of incorporation, our bylaws and applicable law. Generally, to be timely, a stockholder’s
notice must be received by the secretary at the principal executive offices of the Company (a) in the case of an annual meeting,
not less than 60 nor more than 120 calendar days prior to the first anniversary of the preceding year’s annual meeting (provided,
however, that if the date of the annual meeting is more than 30 days before or more than 30 days after such anniversary date, notice
by the stockholder must be so delivered, or mailed and received, not less than 60 nor more than 120 calendar days before such annual meeting,
or not more than 10 calendar days following the day on which public announcement of the date of such meeting is first made by the
Company), or (b) in the case of a special meeting, not more than 120 calendar days before such special meeting nor less than the
later of (i) 60 calendar days prior to such meeting or (ii) if a public announcement is first made of the date of the special
meeting less than 100 calendar days prior to such meeting, 10 calendar days following such public announcement. Stockholders are
not permitted to make proposals to be brought before any special meeting of our stockholders other than the nomination of candidates for
election as directors where the stated purpose for such special meeting includes the election of directors.
Any
such notice must include certain specified information and representations regarding (i) each person whom the stockholder proposes
to nominate for election or re-election as a director, (ii) any other business the stockholder proposes to bring before the meeting,
(iii) the Proposing Stockholder, (iv) any agreements, arrangements and understandings between the Proposing Stockholder and
any other person in connection with the proposal of such business or nominations by the stockholder, (v) whether the Proposing Stockholder
is a holder of record of stock and entitled to vote, (vi) with respect to director nominations, whether the Proposing Stockholder
is or intends to be part of a group that intends (a) to solicit proxies or votes in support of such director nominees or nomination
other than the Company’s director nominees in accordance with Rule 14a-19 promulgated under the Exchange Act and (b) to
deliver a proxy statement and/or form of proxy to holders of at least 67% of the Company’s outstanding capital stock required to
approve or adopt the proposal, (vii) with respect to other proposals, whether the Proposing Stockholder is or intends to be part
of a group that intends (a) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Company’s
outstanding capital stock required to approve or adopt the proposal and/or (b) otherwise to solicit proxies from stockholders in
support of such proposal, and (viii) other stockholders (including beneficial and record owners) known by the Proposing Stockholder,
or any affiliate or associate thereof, to support the nomination or other business proposal, and to the extent known, the class and number
of all shares of the Company’s capital stock owned beneficially or of record by such other stockholders. As to matters sought to
be included in the Company’s proxy statement, stockholders must comply with Rule 14a-8 under the Exchange Act.
Limitation of Director and Officer Liability
As permitted by provisions of the Delaware General
Corporation Law, our certificate of incorporation provides that no director or officer of the Company shall be liable to the Company or
to its stockholders for monetary damages for breach of fiduciary duty as a director or officer, as applicable, except to the extent such
an exemption from liability or limitation thereof is not permitted under the Delaware General Corporation Law.
This provision does not exculpate directors or
officers from liability for breach of the duty of loyalty, acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of law, or any transaction in which the director or officer derived an improper personal benefit. Also, in the
case of directors, this provision does not apply in the case of claims arising under Section 174 of the Delaware General Corporation
Law (relating to the declaration of dividends and purchase or redemption of shares in violation of the Delaware General Corporation Law),
and in the case of officers, this provision does not apply in the case of claims brought by or in the right of the Company, such as derivative
claims. In addition, this provision does not limit our rights or the rights of our stockholders, in appropriate circumstances, to seek
equitable remedies such as injunctive or other forms of non-monetary relief. Such remedies may not be effective in all cases.
Indemnification Arrangements
Our bylaws provide that the Company shall indemnify
our directors and officers to the full extent permitted by Delaware law. Under such provisions any director or officer, who, in his or
her capacity as such, is made or threatened to be made a party to any suit or proceeding, may be indemnified if the board of directors
determines such director or officer acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the
best interest of the Company. Our bylaws and the Delaware General Corporation Law further provide that such indemnification is not exclusive
of any other rights to which such individuals may be entitled under the bylaws, any agreement, any vote of stockholders or disinterested
directors, or otherwise.
We have entered into indemnification agreements
with all of our current directors and officers to assure them that they will be indemnified to the extent permitted by our bylaws and
the Delaware General Corporation Law. The indemnification agreements provide our directors and officers indemnification against, among
other things, any and all expenses, judgments, fines, penalties and amounts paid in settlement by the director or officer, provide for
the advancement of expenses incurred by the director or officer in connection with any proceeding and obligate the director or officer
to reimburse Royal Gold for all amounts so advanced if it is subsequently determined, as provided in the indemnification agreements, that
the director or officer is not entitled to indemnification, if such advanced amounts were in excess of amounts actually paid or incurred
by such director or officer or if such director or officer receives from insurance or other compensation or reimbursement payments from
any insurer or third party in respect of the same subject matter. The indemnification agreements also provide certain methods and presumptions
for determining whether the director or officer is entitled to indemnification, among other matters, as set forth in such agreement. However,
we are not required to indemnify a person on account of any action, claim or proceeding (other than as specifically provided in our bylaws)
initiated by such person against the Company unless such action, claim or proceeding (i) relates to such person’s right to
indemnification under any indemnification agreement entered into by such person and the Company, (ii) was authorized in the specific
case by action of the board of directors, or (iii) as otherwise required under the Delaware General Corporation Law.
Our bylaws also provide that the Company may,
to the extent authorized by the board of directors, provide rights to indemnification and to the advancement of expenses to employees
and agents of the Company similar to those conferred to directors and officers, as described above.
Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers or persons controlling Royal Gold pursuant to our certificate of incorporation,
our bylaws or any indemnification agreement, Royal Gold has been informed that in the opinion of the SEC such indemnification is against
public policy as expressed under the Securities Act and is therefore unenforceable.
Transfer Agent
The transfer agent for our common stock is Computershare
Trust Company, Providence, Rhode Island.
DESCRIPTION OF WARRANTS
We may issue warrants, including warrants to purchase
debt securities, preferred stock or common stock. Warrants may be issued independently or together with any equity or debt securities
and may be attached to or separate from such equity or debt securities. Each series of warrants will be issued under a separate warrant
agreement to be entered into between Royal Gold and a warrant agent. The warrant agent will act solely as our agent in connection with
the warrants of such series and will not assume any obligation or relationship of agency or trust for or with any holders or beneficial
owners of warrants. Terms of the warrants and the applicable warrant agreement will be set forth in the applicable prospectus supplement,
which may include:
| · | the title of the warrants; |
| · | the aggregate principal amount of the warrants and the issue
price of the warrants; |
| · | the number of securities for, and the price at, which the warrants
are exercisable and the period during which the warrants may be exercised; |
| · | the currency or currencies, including composite currencies,
in which the price of the warrants may be payable; |
| · | in the case of warrants to purchase preferred stock, the designation,
number of shares, stated value and terms, such as liquidation, dividend, conversion and voting rights, of the series of preferred stock
purchasable upon exercise of the warrants, and the price at which such number of shares of preferred stock of such series may be purchased
upon such exercise; |
| · | in the case of warrants to purchase debt securities, the designation,
aggregate principal amount, currencies, denominations and terms of the series of debt securities purchasable upon exercise of the warrants
and the price at which the debt securities may be purchased upon exercise; |
| · | if applicable, the date on and after which the warrants and
the related securities will be separately transferable; |
| · | any provision adjusting the securities that may be purchased
on exercise of the warrants, and the exercise price of the warrants, to prevent dilution or otherwise; and |
| · | any other terms of the warrants, including terms, procedures
and limitations relating to the exchange and exercise of the warrants. |
DESCRIPTION OF DEPOSITARY SHARES
We may, at our option, elect to issue fractional
shares of preferred stock rather than full shares of preferred stock. If we exercise this option, we will issue to the public receipts
for depositary shares, and each of these depositary shares will represent a fraction (to be set forth in the applicable prospectus supplement)
of a share of a particular series of preferred stock.
The shares of any series of preferred stock underlying
the depositary shares will be deposited under a deposit agreement between us and a bank or trust company selected by us. The depositary
will have its principal office in the United States and a combined capital and surplus of at least $50,000,000. Subject to the terms of
the deposit agreement, each owner of a depositary share will be entitled, in proportion to the applicable fraction of a share of preferred
stock underlying the depositary share, to all of the rights and preferences of the preferred stock underlying that depositary share. Those
rights may include dividend, voting, redemption, conversion and liquidation rights.
The depositary shares will be evidenced by depositary
receipts issued under a deposit agreement. Depositary receipts will be distributed to those persons purchasing the fractional shares of
preferred stock underlying the depositary shares, in accordance with the terms of the offering. The material terms of the deposit agreement,
the depositary shares and the depositary receipts will be described in a prospectus supplement relating to the depositary shares. You
should also refer to the forms of the deposit agreement and depositary receipts that will be filed with the SEC in connection with the
offering of the specific depositary shares.
DESCRIPTION OF PURCHASE CONTRACTS
We may issue purchase contracts for the purchase
or sale of, among other things, any of our other securities described in this prospectus. Unless otherwise provided in the applicable
prospectus supplement, each purchase contract will entitle the holder thereof to purchase or sell, and obligate us to sell or purchase,
on specified dates, the securities specified in the applicable prospectus supplement at a specified price or prices, which may be based
on a formula, all as set forth in the applicable prospectus supplement. Additional information regarding any purchase contracts we may
offer will be set forth in the applicable prospectus supplement.
DESCRIPTION OF UNITS
We may issue units consisting of any of our other
securities described in this prospectus. Additional information regarding any units we may offer will be set forth in the applicable prospectus
supplement.
SELLING SECURITYHOLDERS
Selling securityholders may use this prospectus
in connection with the resale of securities from time to time. The applicable prospectus supplement will identify the selling securityholders,
the terms of the securities and other information regarding the transaction, such as the price of the securities, the names of any underwriter
or broker-dealer, if used, and the commissions paid or discounts or concessions allowed to such underwriter or broker-dealer, where applicable.
The selling securityholders may be deemed to be underwriters in connection with the securities they resell and any profits on the sales
may be deemed to be underwriting discounts and commissions under the Securities Act. The selling securityholders will receive all the
proceeds from their sale of securities. We will not receive any proceeds from sales by selling securityholders except as otherwise specified
in an applicable prospectus supplement. We may pay all expenses incurred with respect to the registration of the shares of common stock
owned by the selling securityholders, other than underwriting fees, discounts or commissions which will be borne by the selling securityholders.
PLAN OF DISTRIBUTION
The Company or the selling securityholders, if
any, may offer and sell securities offered by means of this prospectus in and outside the United States in one or more of the following
ways from time to time:
| · | to or through underwriters or dealers; |
| · | directly to one or more purchasers, including through a specific bidding, auction or other process; |
| · | on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale; |
| · | in the over-the-counter market; |
| · | in transactions other than on these exchanges or systems or in the over-the-counter market; |
| · | in “at the market offerings,” within the meaning of Rule 415(a)(4) under the Securities Act, to or through a
market maker or into an existing trading market, on an exchange or otherwise; |
| · | through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
| · | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
| · | block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block
as principal to facilitate the transaction; |
| · | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; |
| · | an exchange distribution in accordance with the rules of the applicable exchange; |
| · | privately negotiated transactions; |
| · | a combination of any of the above methods of sale; and |
| · | through any other method permitted pursuant to applicable law and described in a prospectus supplement. |
The prospectus supplement relating to the offered
securities will set forth the terms of the offering, which may include:
| · | the name or names of any underwriters, dealers or agents; |
| · | the purchase price of the offered securities; |
| · | any initial public offering price; |
| · | any delayed delivery arrangements; |
| · | any underwriting discounts, commissions and other items constituting
underwriters’ compensation; |
| · | any discounts, concessions or other items allowed or reallowed
or paid to dealers or agents; |
| · | any commissions paid to agents; and |
| · | any securities exchanges on which the offered securities may
be listed. |
We may use one or more underwriters in the sale
of the offered securities, in which case the offered securities will be acquired by the underwriter or underwriters for their own account
and may be resold from time to time in one or more transactions either:
| · | at a fixed price or prices, which may be changed; |
| · | at market prices prevailing at the time of sale; |
| · | at prices related to such prevailing market prices; or |
The Company or the selling securityholders may
directly solicit offers to purchase our securities and may sell such securities directly to institutional investors or others, who may
be deemed to be underwriters within the meaning of the Securities Act with respect to any resale thereof. The Company or the selling securityholders
will describe the terms of direct sales in the prospectus supplement.
Agents designated by the Company or the selling
securityholders may solicit offers to purchase the securities from time to time. The prospectus supplement will name any such agent involved
in the offer or sale of the securities and will set forth any commissions payable by us or the selling securityholders to such agent.
Unless otherwise indicated in such prospectus supplement, any such agent will be acting on a reasonable best efforts basis for the period
of its appointment. Any such agent may be deemed to be an underwriter of the securities so offered and sold.
If the Company or the selling securityholders
utilizes an underwriter in the sale of the securities offered by this prospectus, the Company or the selling securityholders will execute
an underwriting agreement with the underwriter or underwriters at the time of sale. We will provide the name of any underwriter in the
prospectus supplement that the underwriter will use to make resales of the securities to the public. In connection with a sale of securities
offered by means of this prospectus, underwriters may be deemed to have received compensation from the Company or the selling securityholders
in the form of underwriting discounts or commissions and may also receive commissions from purchasers of securities for whom they may
act as agent. Underwriters may sell securities offered by means of this prospectus to or through dealers, and such dealers may receive
compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom
they may act as agent. Any underwriting compensation paid by the Company or the selling securityholders to underwriters or agents in connection
with the offering of securities offered by means of this prospectus, and any discounts, concessions or commissions allowed by underwriters
to participating dealers, will be set forth in the applicable prospectus supplement. Underwriters, dealers and agents participating in
the distribution of the offered securities may be deemed to be underwriters, and any discounts or commissions received by them and any
profit realized by them upon the resale of the offered securities may be deemed to be underwriting discounts and commissions, under the
Securities Act.
Underwriters, dealers and agents may be entitled,
under agreements that may be entered into with the Company or the selling securityholders, to indemnification against certain civil liabilities,
including liabilities under the Securities Act, or to any contribution with respect to payments which they may be required to make in
respect thereof and may engage in transactions with, or perform services for, us in the ordinary course of business.
If the Company or the selling securityholders
use delayed delivery contracts, the Company or the selling securityholders will, directly or through agents, underwriters or dealers,
disclose that they are using them in the prospectus supplement and state when they will demand payment and delivery of the securities
under the delayed delivery contracts. The Company or the selling securityholders may further agree to adjustments before a public offering
to the underwriters’ purchase price for the securities based on changes in the market value of the securities. The prospectus supplement
relating to any such public offering will contain information on the number of securities to be sold, the manner of sale or other distribution,
and other material facts relating to the public offering. These delayed delivery contracts will be subject only to the conditions that
the Company or the selling securityholders set forth in the prospectus supplement.
To facilitate the offering of securities, certain
persons participating in the offering may engage in transactions that stabilize, maintain or otherwise affect the price of the securities.
This may include over-allotments or short sales of the securities, which involve the sale by persons participating in the offering of
more securities than the Company sold to them. In these circumstances, these persons would cover such over-allotments or short positions
by exercising their over-allotment option, if any, or making purchases in the open market. In addition, these persons may stabilize or
maintain the price of the securities by bidding for or purchasing securities in the open market or by imposing penalty bids, whereby selling
concessions allowed to dealers participating in the offering may be reclaimed if securities sold by them are repurchased in connection
with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the securities at
a level above that which might otherwise prevail in the open market. These transactions may be discontinued at any time.
Other than the common stock, all securities offered
by this prospectus will be a new issue of securities with no established trading market. Any underwriter to whom securities are sold by
us or the selling securityholders for public offering and sale may make a market in such securities, but such underwriters may not be
obligated to do so and may discontinue any market making at any time without notice. The securities may or may not be listed on a national
securities exchange or a foreign securities exchange, except for the common stock which is currently listed and traded on The Nasdaq Global
Select Market. Any common stock sold by this prospectus will be listed for trading on The Nasdaq Global Select Market subject to official
notice of issuance. The Company cannot give you any assurance as to the liquidity of the trading markets for any securities.
Agents, underwriters and dealers may be customers
of, engage in transactions with, or perform services for, us and our subsidiaries in the ordinary course of business.
LEGAL MATTERS
The validity of the securities being offered by
this prospectus will be passed upon for us by Hogan Lovells US LLP, Denver, Colorado.
EXPERTS
The consolidated financial statements of Royal
Gold, Inc. appearing in Royal Gold, Inc.’s Annual Report (Form 10-K) for the year ended December 31, 2022, and
the effectiveness of Royal Gold, Inc.’s internal control over financial reporting as of December 31, 2022, have been audited
by Ernst & Young LLP, independent registered public accounting firm, as set forth in their reports thereon, included therein,
and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such
reports given on the authority of such firm as experts in accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 14. | Other Expenses of Issuance
and Distributions. |
The estimated expenses to be borne by us in connection
with the issuance and distribution of the securities being registered, other than underwriting discounts and commissions, are set forth
below.
| SEC registration fee |
|
$ |
* |
|
| Printing expenses |
|
$ |
** |
|
| Accounting fees and expenses |
|
$ |
** |
|
| Legal fees and expenses |
|
$ |
** |
|
| Trustee and depositary fees and expenses |
|
$ |
** |
|
| Rating agency fees |
|
$ |
** |
|
| Listing fees and expenses |
|
$ |
** |
|
| Miscellaneous |
|
$ |
** |
|
| Total |
|
$ |
** |
|
| * | The registrant is deferring payment of the registration fee
in reliance on Rule 456(b) and Rule 457(r). |
| ** | These fees are calculated based upon the number of issuances
and amount of securities offered and accordingly cannot be estimated at this time. |
| Item 15. | Indemnification
of Directors and Officers. |
Set forth below is a description of certain provisions
of the Delaware General Corporation Law (the “Delaware Statute”), Royal Gold’s certificate of incorporation and the
bylaws, and certain indemnification agreements between Royal Gold and its directors and officers. The description is intended only as
a summary and is qualified in its entirety by reference to the Delaware Statute, Royal Gold’s certificate of incorporation and the
bylaws, and the indemnification agreement, a form of which has been filed by Royal Gold with the SEC.
Delaware General Corporation Law
Under Section 145 of the Delaware Statute,
a corporation may indemnify its directors, officers, employees and agents and its former directors, officers, employees and agents and
those who serve, at the corporation’s request, in such capacities with another enterprise, against expenses (including attorneys’
fees), as well as judgments, fines and settlements in nonderivative lawsuits, actually and reasonably incurred in connection with the
defense of any action, suit or proceeding in which they or any of them were or are made parties or are threatened to be made parties by
reason of their serving or having served in such capacity. The Delaware Statute provides, however, that such person must have acted in
good faith and in a manner he or she reasonably believed to be in (or not opposed to) the best interest of the corporation and, in the
case of a criminal action, such person must have had no reasonable cause to believe his or her conduct was unlawful. In addition, the
Delaware Statute does not permit indemnification in an action or suit by or in the right of the corporation, where such person has been
adjudged liable to the corporation, unless, and only to the extent that, a court determines that such person fairly and reasonably is
entitled to indemnity for expenses the court deems proper in light of liability adjudication. Indemnity is mandatory to the extent a claim,
issue or matter has been successfully defended. The Delaware Statute provides that a corporation has the power to purchase and maintain
insurance on behalf of any person described above, whether or not the corporation would have the power to indemnify such person against
such liability under the provisions of the Delaware Statute.
Section 102 of the Delaware Statute allows
a corporation to eliminate or limit the personal liability of directors and officers of a corporation to the corporation or its stockholders
for monetary damages for a breach of fiduciary duty as a director or officer, except where the director or officer breached his or her
duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, or obtained an improper personal
benefit, or where a director authorized the payment of a dividend or approved a stock repurchase in violation of Delaware law. In addition,
Section 102 of the Delaware Statute does not permit a corporation to eliminate or limit the personal liability of an officer in any
action by or in the right of the corporation.
Section 174 of the Delaware Statute provides,
among other things, that a director who willfully or negligently approves of an unlawful payment of dividends or an unlawful stock purchase
or redemption may be held liable for such actions. A director who was either absent when the unlawful actions were approved or dissented
at the time may avoid liability by causing his or her dissent to such actions to be entered in the books containing the minutes of the
meetings of the board of directors at the time such action occurred or immediately after such absent director receives notice of the unlawful
acts.
Certificate of Incorporation and Bylaws
Royal Gold’s certificate of incorporation
and the bylaws provide for mandatory indemnification or similar rights of directors and officers generally to the same extent as is authorized
by the Delaware Statute. Under the bylaws, Royal Gold must advance expenses incurred by an officer or director in defending any such action
if the director or officer undertakes to repay such amount if it is ultimately determined that he or she is not entitled to indemnification.
To the extent authorized by the board of directors, Royal Gold may also similarly indemnify and advance expenses to employees and agents.
The provisions of the certificate of incorporation and bylaws do not preclude Royal Gold from indemnifying other persons from similar
or other expenses and liabilities as the board of directors or the stockholders may determine in a specific instance or by resolution
of general application.
Indemnification Agreements and Insurance
Royal Gold has entered into indemnification agreements
with its current officers and directors. The indemnification agreements provide such persons indemnification against, among other things,
any and all expenses, judgments, fines, penalties, and amounts paid in settlement by the director or officer, provide for the advancement
of expenses incurred by the director or officer in connection with any proceeding and obligate the director or officer to reimburse the
registrant for all amounts so advanced if it is subsequently determined, as provided in the indemnification agreements, that the director
or officer is not entitled to indemnification, if such advanced amounts were in excess of amounts actually paid or incurred by such director
or officer or if such director or officer receives from insurance or other compensation or reimbursement payments from any insurer or
third party in respect of the same subject matter. The indemnification agreements also provide certain methods and presumptions for determining
whether the officer or director is entitled to indemnification, among other matters, as set forth in such agreement.
Royal Gold also maintains directors’ and
officers’ liability insurance.
| * | To be filed, if necessary, as an exhibit to a post-effective
amendment to this registration statement or as an exhibit to a report pursuant to Section 13(a) or 15(d) of the Exchange
Act and incorporated herein by reference. |
| *** | To be filed in accordance with the Trust Indenture Act of 1939,
as amended. |
| (a) | The undersigned registrant hereby undertakes: |
| (1) | To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement: |
| (i) | To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933; |
| | | |
| |
(ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation
of Registration Fee” table in the effective registration statement; and |
| (iii) | To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any material change to such information in the registration
statement; |
provided,
however, that paragraphs (a)(l)(i), (a)(l)(ii) and (a)(l)(iii) of this section do not apply if the information required
to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the 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 the
registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) under the Securities Act of 1933
that is part of the registration statement.
| (2) | That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (3) | To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of the offering. |
| (4) | That, for the purpose of determining liability under the Securities
Act of 1933 to any purchaser: |
| (i) | Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall
be deemed to be part of this 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)(l)(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
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. |
| (c) | Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy
as expressed in the 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 to file an application
for the purpose of determining the eligibility of the trustee to act under subsection (a) of section 310 of the Trust Indenture
Act in accordance with the rules and regulations prescribed by the SEC under section 305(b)(2) of the Trust Indenture Act. |
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Denver, State of Colorado, on November 2, 2023.
| |
ROYAL GOLD, INC. |
| |
|
| |
By: |
/s/ William Heissenbuttel |
| |
Name: |
William Heissenbuttel |
| |
Title: |
President and Chief Executive Officer |
POWER OF ATTORNEY
Each
person whose signature appears below constitutes and appoints Paul Libner and Laura
Gill and either of them, his or her true and lawful attorney-in-fact and agent with full power of substitution and resubstitution, for
him or her in any and all capacities, to sign any and all amendments (including post-effective amendments) and supplements to this registration
statement, or any registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under
the Securities Act, to file the same with all exhibits thereto, and any and all instruments or documents in connection therewith, with
the Securities and Exchange Commission, and to execute, deliver and file any other documents and instruments in the undersigned’s
name or on the undersigned’s behalf which said attorneys-in-fact and agents, or either of them, may determine to be necessary or
advisable to comply with the Securities Act and any rules or regulations promulgated thereunder, and any such attorney-in-fact may
make such changes and additions to this registration statement or such other documents or instruments as such attorney-in-fact may deem
necessary or appropriate, granting each of them, 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 to all intents and purposes as he or she might or could do in person and hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his or her substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the date indicated.
| Signature |
|
Title |
|
Date |
| /s/ William Heissenbuttel |
|
Director, President and Chief Executive Officer |
|
November 2, 2023 |
| William Heissenbuttel |
|
(Principal Executive Officer) |
|
|
| |
|
|
|
|
| /s/ Paul Libner |
|
Chief Financial Officer and Treasurer |
|
November 2, 2023 |
| Paul Libner |
|
(Principal Financial and Accounting Officer) |
|
|
| |
|
|
|
|
| /s/ William Hayes |
|
Chair |
|
November 2, 2023 |
| William Hayes |
|
|
|
|
| |
|
|
|
|
| /s/ Fabiana Chubbs |
|
Director |
|
November 2, 2023 |
| Fabiana Chubbs |
|
|
|
|
| |
|
|
|
|
| /s/ C. Kevin McArthur |
|
Director |
|
November 2, 2023 |
| C. Kevin McArthur |
|
|
|
|
| |
|
|
|
|
| /s/ Jamie Sokalsky |
|
Director |
|
November 2, 2023 |
| Jamie Sokalsky |
|
|
|
|
| |
|
|
|
|
| /s/ Ronald Vance |
|
Director |
|
November 2, 2023 |
| Ronald Vance |
|
|
|
|
| |
|
|
|
|
| /s/ Sybil Veenman |
|
Director |
|
November 2, 2023 |
| Sybil Veenman |
|
|
|
|
Exhibit 4.6
Royal Gold, Inc.
as Issuer
and
[____________]
as Trustee
INDENTURE
Dated as of [________]
CERTAIN SECTIONS OF THIS INDENTURE
RELATING TO SECTIONS 310 THROUGH 318 INCLUSIVE,
OF THE TRUST INDENTURE ACT OF 1939
| Trust Indenture Act Section |
INDENTURE
Section |
| Section 310(a)(1) |
Section 609 |
| (a)(2) |
Section 609 |
| (a)(3) |
Not Applicable |
| (a)(4) |
Not Applicable |
| (b) |
Section 608 |
| |
Section 610 |
| Section 311(a) |
Section 613 |
| (b) |
Section 613 |
| Section 312(a) |
Section 701 |
| |
Section 702 |
| (b) |
Section 702 |
| (c) |
Section 702 |
| Section 313(a) |
Section 703 |
| (b) |
Section 703 |
| (c) |
Section 703 |
| (d) |
Section 703 |
| Section 314(a) |
Section 704 |
| (a)(4) |
Section 1005 |
| (b) |
Not Applicable |
| (c)(1) |
Section 102 |
| (c)(2) |
Section 102 |
| (c)(3) |
Not Applicable |
| (d) |
Not Applicable |
| (e) |
Section 102 |
| Section 315(a) |
Section 601 |
| (b) |
Section 602 |
| (c) |
Section 601 |
| (d) |
Section 601 |
| (e) |
Section 513 |
| Section 316(a) |
Not Applicable |
| (a)(1)(A) |
Section 502
Section 511 |
| (a)(1)(B) |
Section 512 |
| (a)(2) |
Not Applicable |
| (b) |
Section 508 |
| (c) |
Section 104 |
| Section 317(a)(1) |
Section 503 |
| (a)(2) |
Section 504 |
| (b) |
Section 1004 |
| Section 318(a) |
Section 107 |
NOTE: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of this Indenture.
TABLE OF CONTENTS
| Article I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
1 |
| |
|
|
| Section 101. |
Definitions |
1 |
| Section 102. |
Compliance Certificates and Opinions |
7 |
| Section 103. |
Form of Documents Delivered to Trustee |
7 |
| Section 104. |
Acts of Holders; Record Dates |
8 |
| Section 105. |
Notices, Etc., to Trustee and Company |
9 |
| Section 106. |
Notice to Holders; Waiver |
10 |
| Section 107. |
Conflict with Trust Indenture Act |
10 |
| Section 108. |
Effect of Headings and Table of Contents |
11 |
| Section 109. |
Successors and Assigns |
11 |
| Section 110. |
Separability Clause |
11 |
| Section 111. |
Benefits of Indenture |
11 |
| Section 112. |
Governing Law |
11 |
| Section 113. |
Legal Holidays |
11 |
| Section 114. |
No Recourse Against Others |
11 |
| Section 115. |
WAIVER OF JURY TRIAL |
12 |
| Section 116. |
Submission to Jurisdiction |
12 |
| Section 117. |
Electronic Signatures |
12 |
| |
|
|
| Article II SECURITY FORMS |
12 |
| |
|
| Section 201. |
Forms Generally |
12 |
| Section 202. |
Form of Legend for Global Securities |
13 |
| Section 203. |
Form of Trustee’s Certificate of Authentication |
13 |
| |
|
|
| Article III THE SECURITIES |
14 |
| |
|
| Section 301. |
Amount Unlimited; Issuable in Series |
14 |
| Section 302. |
Denominations |
17 |
| Section 303. |
Execution, Authentication, Delivery and Dating |
17 |
| Section 304. |
Temporary Securities |
19 |
| Section 305. |
Registration, Registration of Transfer and Exchange |
19 |
| Section 306. |
Mutilated, Destroyed, Lost and Stolen Securities |
21 |
| Section 307. |
Payment of Interest; Interest Rights Preserved |
21 |
| Section 308. |
Persons Deemed Owners |
22 |
| Section 309. |
Cancellation |
22 |
| Section 310. |
Computation of Interest |
23 |
| Section 311. |
CUSIP Numbers |
23 |
| Section 312. |
Original Issue Discount |
23 |
| |
|
|
| Article IV SATISFACTION AND DISCHARGE |
23 |
| |
|
| Section 401. |
Satisfaction and Discharge of Indenture |
23 |
| Section 402. |
Application of Trust Money |
24 |
| |
|
|
| Article V REMEDIES |
25 |
| |
|
| Section 501. |
Events of Default |
25 |
| Section 502. |
Acceleration of Maturity; Rescission and Annulment |
26 |
| Section 503. |
Collection of Indebtedness and Suits for Enforcement by Trustee |
27 |
| Section 504. |
Trustee May File Proofs of Claim |
28 |
| Section 505. |
Trustee May Enforce Claims Without Possession of Securities |
28 |
| Section 506. |
Application of Money Collected |
28 |
| Section 507. |
Limitation on Suits |
29 |
| Section 508. |
Unconditional Right of Holders to Receive Principal, Premium, and Interest and to Convert Securities |
29 |
| Section 509. |
Rights and Remedies Cumulative |
29 |
| Section 510. |
Delay or Omission Not Waiver |
30 |
| Section 511. |
Control by Holders |
30 |
| Section 512. |
Waiver of Past Defaults |
30 |
| Section 513. |
Undertaking for Costs |
30 |
| Section 514. |
Waiver of Usury, Stay or Extension Laws |
31 |
| Section 515. |
Restoration of Rights and Remedies |
31 |
| |
|
|
| Article VI THE TRUSTEE |
31 |
| |
|
| Section 601. |
Certain Duties and Responsibilities of Trustee |
31 |
| Section 602. |
Notice of Defaults |
32 |
| Section 603. |
Certain Rights of Trustee |
32 |
| Section 604. |
Not Responsible for Recitals or Issuance of Securities |
34 |
| Section 605. |
May Hold Securities |
34 |
| Section 606. |
Money Held in Trust |
34 |
| Section 607. |
Compensation and Reimbursement |
34 |
| Section 608. |
Conflicting Interests |
35 |
| Section 609. |
Corporate Trustee Required; Eligibility |
35 |
| Section 610. |
Resignation and Removal; Appointment of Successor |
35 |
| Section 611. |
Acceptance of Appointment by Successor |
37 |
| Section 612. |
Merger, Conversion, Consolidation or Succession to Business |
38 |
| Section 613. |
Preferential Collection of Claims Against Company |
38 |
| Section 614. |
Appointment of Authenticating Agent |
38 |
| |
|
|
| Article VII HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY |
39 |
| |
|
| Section 701. |
Company to Furnish Trustee Names and Addresses of Holders |
39 |
| Section 702. |
Preservation of Information; Communications to Holders |
40 |
| Section 703. |
Reports by Trustee |
40 |
| Section 704. |
Reports by Company |
40 |
| |
|
|
| Article VIII CONSOLIDATION, MERGER AND SALE OF ASSETS |
41 |
| |
|
| Section 801. |
Company May Merge or Transfer Assets Only on Certain Terms |
41 |
| Section 802. |
Successor Corporation Substituted |
41 |
| |
|
|
| Article IX SUPPLEMENTAL INDENTURES |
41 |
| |
|
| Section 901. |
Supplemental Indentures Without Consent of Holders |
41 |
| Section 902. |
Supplemental Indentures With Consent of Holders |
43 |
| Section 903. |
Execution of Supplemental Indentures |
44 |
| Section 904. |
Effect of Supplemental Indentures |
44 |
| Section 905. |
Conformity with Trust Indenture Act |
45 |
| Section 906. |
Reference in Securities to Supplemental Indentures |
45 |
| |
|
|
| Article X COVENANTS |
45 |
| |
|
| Section 1001. |
Payment of Principal, Premium, if any, and Interest |
45 |
| Section 1002. |
Corporate Existence |
45 |
| Section 1003. |
Maintenance of Office or Agency |
46 |
| Section 1004. |
Money for Securities Payments to Be Held in Trust |
46 |
| Section 1005. |
Statement by Officers as to Default |
47 |
| Section 1006. |
Waiver of Certain Covenants |
47 |
| |
|
|
| Article XI REDEMPTION OF SECURITIES |
47 |
| |
|
| Section 1101. |
Applicability of Article |
47 |
| Section 1102. |
Election to Redeem; Notice to Trustee |
48 |
| Section 1103. |
Selection by Trustee of Securities to Be Redeemed |
48 |
| Section 1104. |
Notice of Redemption |
48 |
| Section 1105. |
Deposit of Redemption Price |
49 |
| Section 1106. |
Securities Payable on Redemption Date |
50 |
| Section 1107. |
Securities Redeemed in Part |
50 |
| |
|
|
| Article XII SINKING FUNDS |
50 |
| |
|
| Section 1201. |
Applicability of Article |
50 |
| Section 1202. |
Satisfaction of Sinking Fund Payments with Securities |
51 |
| Section 1203. |
Redemption of Securities for Sinking Fund |
51 |
| |
|
|
| Article XIII DEFEASANCE AND COVENANT DEFEASANCE |
51 |
| |
|
| Section 1301. |
Company’s Option to Effect Defeasance or Covenant Defeasance |
51 |
| Section 1302. |
Defeasance and Discharge |
52 |
| Section 1303. |
Covenant Defeasance |
52 |
| Section 1304. |
Conditions to Defeasance or Covenant Defeasance |
53 |
| Section 1305. |
Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions |
54 |
| Section 1306. |
Reinstatement |
54 |
| |
|
|
| Article XIV REPAYMENT AT THE OPTION OF HOLDERS |
55 |
| |
|
| Section 1401. |
Applicability of Article |
55 |
| Section 1402. |
Repayment of Securities |
55 |
| Section 1403. |
Exercise of Option |
55 |
| Section 1404. |
When Securities Presented for Repayment Become Due and Payable |
56 |
| Section 1405. |
Securities Repaid in Part |
56 |
INDENTURE, dated as of _______, 20___, between
Royal Gold, Inc., a Delaware corporation (herein called the “Company”), and [____________], as Trustee (herein
called the “Trustee”).
RECITALS OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of its debt securities (herein called the “Securities”),
to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the
Securities or of any series thereof, as follows:
Article I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
| (1) | the terms defined in this Article I have the meanings assigned to them in this Article I and include the plural as well
as the singular; |
| (2) | all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein; |
| (3) | all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP; |
| (4) | unless the context otherwise requires, any reference to an “Article” or a “Section” refers to an Article or
a Section, as the case may be, of this Indenture; |
| (5) | the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture
as a whole and not to any particular Article, Section or other subdivision; |
| (6) | “including” means including without limitation; |
| (8) | references to statutes are to be construed as including all statutory provisions consolidating, amending or replacing the statute
referred to; |
| (9) | when used with respect to any Security, the words “convert,” “converted” and “conversion” are
intended to refer to the right of the Holder or the Company to convert or exchange such Security into or for securities or other property
in accordance with such terms, if any, as may hereafter be specified for such Security as contemplated by Section 301, and these
words are not intended to refer to any right of the Holder or the Company to exchange such Security for other Securities of the same series
and like tenor pursuant to Section 304, Section 305, Section 306, Section 906 or Section 1107 or another similar
provisions of this Indenture, unless the context otherwise requires; and references herein to the terms of any Security that may be converted
mean such terms as may be specified for such Security as contemplated in Section 301; and |
| (10) | unless otherwise provided, references to agreements and other instruments shall be deemed to include all amendments and other modifications
to such agreements and instruments, but only to the extent such amendments and other modifications are not prohibited by the terms of
this Indenture. |
“Act,” when used with respect
to any Holder, has the meaning specified in Section 104.
“Affiliate” means, with respect
to any specified Person, any other Person directly or indirectly controlling or controlled by or under direct or indirect common control
with such specified Person. For purposes of this definition, “control” when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Applicable Procedures” means,
with respect to a Depositary, as to any matter at any time, the policies and procedures of such Depositary, if any, that are applicable
to such matter at such time.
“Authenticating Agent” means
any Person authorized by the Trustee pursuant to Section 614 to act on behalf of the Trustee to authenticate Securities of one or
more series.
“Bankruptcy Law” has the meaning
specified in Section 501.
“Board of Directors” means either
the Board of Directors of the Company or any duly authorized committee of that Board of Directors.
“Board Resolution” means a copy
of one or more resolutions certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such certification and delivered to the Trustee.
“Business Day” means, when used
with respect to any Place of Payment, unless otherwise specified as contemplated by Section 301, any day, other than a Saturday or
Sunday, which is not a day on which banking institutions are authorized or obligated by law or executive order to close in that Place
of Payment.
“Commission” means the U.S.
Securities and Exchange Commission, from time to time constituted, created under the Exchange Act, or, if at any time after the execution
of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
“Company” means the Person named
as the “Company” in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“Company Request” or “Company
Order” means a written request or order signed in the name of the Company by an Officer of the Company (or any Person designated
in writing by an Officer of the Company as authorized to execute and deliver Company Requests and Company Orders), and delivered to the
Trustee.
“Corporate Trust Office” means
the principal office of the Trustee at which, at any particular time, its corporate trust business shall be conducted (which office is
located as of the date of this Indenture at [___________]), or at any other time at such other address as the Trustee may designate from
time to time by notice to the Holders).
“Covenant Defeasance” has the
meaning specified in Section 1303.
“Custodian” has the meaning
specified in Section 501.
“Default” means any event which
is, or after notice or passage of time or both would be, an Event of Default.
“Defaulted Interest” has the
meaning specified in Section 307.
“Defeasance” has the meaning
specified in Section 1302.
“Depositary” means, with respect
to Securities of any series issuable in whole or in part in the form of one or more Global Securities, a clearing agency registered under
the Exchange Act that is designated to act as Depositary for such Securities as contemplated by Section 301.
“Event of Default” has the meaning
specified in Section 501.
“Exchange Act” means the U.S.
Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time.
“Expiration Date” has the meaning
specified in Section 104.
“GAAP” means generally accepted
accounting principles in the United States as in effect from time to time.
“Global Security” means a Security
that evidences all or part of the Securities of any series and bears the legend set forth in Section 202 (or such legend as may be
specified as contemplated by Section 301 for such Securities).
“Holder” means a Person in whose
name a Security is registered in the Security Register.
“Indenture” means this instrument
as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture,
the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture,
respectively. The term “Indenture” shall also include the terms of particular series of Securities established as contemplated
by Section 301.
“interest” means, when used
with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, interest payable after Maturity.
“Interest Payment Date” means,
when used with respect to any Security, the Stated Maturity of an installment of interest on such Security.
“Internal Revenue Code” means
the U.S. Internal Revenue Code of 1986, as amended from time to time.
“Maturity” means, when used
with respect to any Security, the date on which the principal of such Security or an installment of principal becomes due and payable
as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Notice of Default” means a
written notice of the kind specified in Section 501.
“Officer” means the Chief Executive
Officer, the Chief Financial Officer, the Corporate Treasurer, the Assistant Treasurer, the General Counsel and Secretary, or any Assistant
Secretary of the Company.
“Officer’s Certificate”
means a certificate signed by an Officer of the Company (or any Person designated in writing by an Officer of the Company as authorized
to execute and deliver Officer’s Certificates) and delivered to the Trustee.
“Opinion of Counsel” means a
written opinion of counsel (who may be counsel for the Company) and which shall be reasonably acceptable to the Trustee. The counsel may
be an employee of the Company. Opinions of Counsel required to be delivered under this Indenture may have qualifications customary for
opinions of the type required.
“Original Issue Discount Security”
means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 502.
“Outstanding” means, when used
with respect to Securities, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture,
except:
| (1) | Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; |
| (2) | Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying
Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; |
| (3) | Securities as to which Defeasance has been effected pursuant to Section 1302; |
| (4) | Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations
of the Company; and |
| (5) | Securities as to which any property deliverable upon conversion thereof has been delivered (or such delivery has been made available),
or as to which any other particular conditions have been satisfied, in each case as may be provided for such Securities as contemplated
in Section 301; |
provided,
however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made
or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) the
principal amount of an Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the principal thereof
which would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 502, (B) if,
as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security
which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 301, (C) the
principal amount of a Security denominated in one or more foreign currencies, composite currencies or currency units which shall be deemed
to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section 301,
of the principal amount of such Security (or, in the case of a Security described in clause (A) or (B) above, of the amount
determined as provided in such clause), and (D) Securities owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action,
only Securities which a Responsible Officer of the Trustee knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s
right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
“Paying Agent” means any Person
authorized by the Company to pay the principal of or premium, if any, or interest on any Securities on behalf of the Company. The Company
initially authorizes and appoints the Trustee as the Paying Agent for each series of the Securities.
“Person” means any individual,
corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof or any other entity.
“Place of Payment” means, when
used with respect to the Securities of any series, the place or places where the principal of and premium, if any, and interest on the
Securities of such series are payable as specified as contemplated by Section 301.
“Predecessor Security” means,
with respect to any particular Security, 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 306 in exchange
for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed,
lost or stolen Security.
“Redemption Date” means, when
used with respect to any Security to be redeemed, the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price” means, when
used with respect to any Security to be redeemed, the price at which it is to be redeemed pursuant to this Indenture.
“Regular Record Date” means,
for the interest payable on any Interest Payment Date on the Securities of any series, the date specified for that purpose as contemplated
by Section 301.
“Repayment Date” means, when
used with respect to a Security to be repaid at the option of a Holder, the date fixed for such repayment by or pursuant to this Indenture.
“Responsible Officer” means,
when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president,
assistant vice president, assistant secretary, senior associate, associate, trust officer, or any other officer associated with the corporate
trust department of the Trustee customarily performing functions similar to those performed by any of the above designated officers who
shall have direct responsibility for the administration of this Indenture, and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of such person’s knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of this Indenture.
“Securities” has the meaning
specified in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
“Securities Act” means the U.S.
Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.
“Security Register” and “Security
Registrar” have the respective meanings specified in Section 305.
“Special Record Date” means,
for the payment of any Defaulted Interest, a date fixed by the Trustee pursuant to Section 307.
“Stated Maturity” means, when
used with respect to any Security or any installment of principal thereof or interest thereon, the date specified in such Security as
the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary” means a corporation
more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries,
or by the Company and one or more other Subsidiaries. For purposes of this definition, “voting stock” means stock which ordinarily
has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power
by reason of any contingency.
“Successor” has the meaning
specified in Section 801.
“Trust Indenture Act” means
the U.S. Trust Indenture Act of 1939 as in force at the date as of which this Indenture was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required
by any such amendment, the Trust Indenture Act of 1939 as so amended.
“Trustee” means the Person named
as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities of that series.
“U.S. Government Obligation”
has the meaning specified in Section 1304(1).
“Vice President” means, when
used with respect to the Company or the Trustee, any vice president, whether or not designated by a number or a word or words added before
or after the title “vice president.”
Section 102. Compliance
Certificates and Opinions.
Upon any application or request by the Company
to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officer’s Certificate
stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished
by the Company.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture (except for certificates provided for in Section 1005) shall include:
| (1) | a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein
relating thereto; |
| (2) | a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based; |
| (3) | a statement that, in the opinion of each such individual, he or she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and |
| (4) | a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. |
Section 103. Form of
Documents Delivered to Trustee.
In any case where several matters are required
to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered
by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Officer (or any
Person designated in writing by an Officer of the Company as authorized to execute and deliver the Securities) may be based, insofar as
it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such Officer (or any such Person
designated in writing by an Officer of the Company as authorized to execute and deliver the Securities) knows, or in the exercise of reasonable
care should know, that the certificate or opinion or representations with respect to the matters upon which such Officer’s (or such
Person’s) certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations by, an Officer or Officers of the Company (or any Person
or Persons designated in writing by an Officer of the Company as authorized to execute and deliver the Securities) stating that the information
with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable
care should know, that the certificate or opinion or representations with respect to such matters are erroneous. Counsel delivering an
Opinion of Counsel may also rely as to factual matters on certificates of governmental or other officials customary for opinions of the
type required.
Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.
Section 104. Acts
of Holders; Record Dates.
Any request, demand, authorization, direction,
notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders may be embodied
in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed
in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument
or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose
of this Indenture and, subject to Section 601, conclusive in favor of the Trustee and the Company, if made in the manner provided
in this Section 104.
The fact and date of the execution by any Person
of any such instrument or writing may be proved in any manner which the Trustee reasonably deems sufficient. Where such execution is by
a Person acting in a capacity other than such Person’s individual capacity, such certificate or affidavit shall also constitute
sufficient proof of such Person’s authority. The fact and date of the execution of any such instrument or writing, or the authority
of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by
the Security Register.
Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder
of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon
such Security.
The Company may set any day as a record date for
the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities
of such series; provided that the Company may not set a record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph. If any record date
is set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date; provided that
no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Company
from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph
shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Company, at its
own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to
the Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 105 and Section 106.
The Trustee may set any day as a record date for
the purpose of determining the Holders of Outstanding Securities of any series entitled to join in the giving or making of (i) any
Notice of Default, (ii) any declaration of acceleration referred to in Section 502, (iii) any request to institute proceedings
referred to in Section 507(2) or (iv) any direction referred to in Section 511, in each case with respect to Securities
of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of such series on such record
date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain
Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in
this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously
been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be
cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record
date is set pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause notice of such record date, the proposed
action by Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder of Securities of the relevant
series in the manner set forth in Section 105 and Section 106.
With respect to any record date set pursuant to
this Section 104, the party hereto which sets such record dates may designate any day as the “Expiration Date”
and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective
unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Securities of the
relevant series in the manner set forth in Section 106, on or prior to the existing Expiration Date. If an Expiration Date is not
designated with respect to any record date set pursuant to this Section 104, the party hereto which set such record date shall be
deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right
to change the Expiration Date as provided in this paragraph.
Without limiting the foregoing, a Holder entitled
hereunder to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal
amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all
or any part of such principal amount.
Section 105. Notices,
Etc., to Trustee and Company.
Any request, demand, authorization, direction,
notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished
to, or filed with,
| (1) | the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in
writing (which may be by facsimile) to or with the Trustee at its Corporate Trust Office at the location specified in Section 101;
or |
| (2) | the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company addressed to the attention of the Secretary of the Company at the
address of the Company’s principal office specified in writing to the Trustee by the Company and, until further notice, at Royal
Gold, Inc., 1144 15th Street, Suite 2500, Denver, Colorado 80202, fax number: (303) 747-6244, Attention: Office of the General
Counsel. |
In addition to the foregoing, the Trustee agrees
to accept and act upon notices, instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission
or other similar unsecured electronic methods. If the party elects to give the Trustee e-mail or facsimile notices, instructions or directions
(or notices, instructions or directions by a similar electronic method) and the Trustee acts upon such notices, instructions or directions,
the Trustee’s understanding of such notices, instructions or directions shall be deemed controlling. The Trustee shall not be liable
for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such notices,
instructions or directions notwithstanding such notices, instructions or directions conflict or are inconsistent with a subsequent written
notice, instruction or direction. The Company agrees to assume all risks arising out of the use of such electronic methods to submit notices,
instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized notices, instructions
or directions, and the risk or interception and misuse by third parties.
Section 106. Notice
to Holders; Waiver.
Where this Indenture provides for notice to Holders
of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at such Holder’s address as it appears in the Security Register, not later
than the latest date, if any, and not earlier than the earliest date, if any, prescribed for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other Holders. Any notice when mailed to a Holder in the aforesaid
manner shall be conclusively deemed to have been received by such Holder whether or not actually received by such Holder. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or
after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular
mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Where this Indenture provides for notice of any
event to a Holder of a Global Security, such notice shall be sufficiently given if given to the Depositary for such Security (or its designee),
pursuant to the Applicable Procedures of the Depositary, not later than the latest date, if any, and not earlier than the earliest date,
if any, prescribed for the giving of such notice.
Section 107. Conflict
with Trust Indenture Act.
If any provision of this Indenture limits, qualifies
or conflicts with a provision of the Trust Indenture Act which is required under such Act to be a part of and govern this Indenture, the
latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act which
may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the
case may be.
Section 108. Effect
of Headings and Table of Contents.
The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 109. Successors
and Assigns.
All covenants and agreements in this Indenture
by the Company shall bind its successors and assigns, whether so expressed or not. All agreements of the Trustee in this Indenture shall
bind its successors and assigns, whether so expressed or not.
Section 110. Separability
Clause.
In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 111. Benefits
of Indenture.
Nothing in this Indenture or in the Securities,
express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
Section 112. Governing
Law.
This Indenture and the Securities shall be governed
by, and construed in accordance with, the law of the State of New York.
Section 113. Legal
Holidays.
In any case where any Interest Payment Date, Redemption
Date, Repayment Date or Stated Maturity of any Security, or any date on which a Holder has the right to convert such Holder’s Security,
shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically states that such provision shall apply in lieu of this Section 113)) payment
of principal and premium, if any, or interest, or the Redemption Price or conversion of such Security, shall not be made at such Place
of Payment on such date, but shall be made on the next succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date, Redemption Date or Repayment Date, or at the Stated Maturity, or on such conversion date. No
interest shall accrue for the period from and after any such Interest Payment Date, Redemption Date, Repayment Date, Stated Maturity or
conversion date, as the case may be, to the date of such payment.
Section 114. No
Recourse Against Others.
No recourse shall be had for the payment of principal
of, or premium, if any, or interest, if any, on any Security of any series, or for any claim based thereon, or upon any obligation, covenant
or agreement of this Indenture, against any incorporator, shareholder, officer or director, as such, past, present or future, of the Company
or any successor corporation of the Company, either directly or indirectly through the Company or any successor corporation of the Company,
whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment of penalty or otherwise; it
being expressly agreed and understood that this Indenture and all the Securities of each series are solely corporate obligations, and
that no personal liability whatsoever shall attach to, or is incurred by, any incorporator, shareholder, officer or director, past, present
or future, of the Company or of any successor corporation of the Company, either directly or indirectly through the Company or any successor
corporation of the Company, because of the incurring of the indebtedness hereby authorized or under or by reason of any of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities of any series, or to be implied herefrom or therefrom;
and that all such personal liability is hereby expressly released and waived as a condition of, and as part of the consideration for,
the execution of this Indenture and the issuance of the Securities of each series.
Section 115. WAIVER
OF JURY TRIAL.
EACH OF THE COMPANY, THE HOLDERS AND THE TRUSTEE
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
AS BETWEEN THE COMPANY AND THE TRUSTEE ONLY ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE SECURITIES.
Section 116. Submission
to Jurisdiction.
The Company hereby irrevocably submits to the
jurisdiction of any New York State court sitting in the Borough of Manhattan in the City of New York or any federal court sitting in the
Borough of Manhattan in the City of New York in respect of any suit, action or proceeding arising out of or relating to this Indenture
and the Securities, and irrevocably accepts for itself and in respect of its property, generally and unconditionally, jurisdiction of
the aforesaid courts.
Section 117. Electronic
Signatures.
The words “execution”, “signed”,
“signature”, “delivery” and words of like import in or relating to this Indenture and/or any document, notice,
instrument or certificate to be signed and/or delivered in connection with this Indenture and the transactions contemplated hereby shall
be deemed to include Electronic Signatures (as defined below), electronic deliveries or the keeping of records in electronic form, each
of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or
the use of a paper-based recordkeeping system, as the case may be. “Electronic Signatures” means any electronic symbol
or process attached to, or associated with, any contract or other record and adopted by a person with the intent to sign, authenticate
or accept such contract or record.
Article II
SECURITY FORMS
Section 201. Forms
Generally.
The Securities of each series shall be in substantially
such form or forms as shall be established by or pursuant to a Board Resolution or, subject to Section 303, set forth in, or determined
in the manner provided in, an Officer’s Certificate pursuant to a Board Resolution, or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture,
and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required
to comply with applicable tax laws or the rules of any securities exchange or Depositary therefor or as may, consistently herewith,
be determined by the Officer (or any Person designated in writing by an Officer of the Company as authorized to execute and deliver the
Securities) executing such Securities, as evidenced by his or her execution thereof. If the form of Securities of any series is established
by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 303
for the authentication and delivery of such Securities. If all of the Securities of any series established by action taken pursuant to
a Board Resolution are not to be issued at one time, it shall not be necessary to deliver a record of such action at the time of issuance
of each Security of such series, but an appropriate record of such action shall be delivered at or before the time of issuance of the
first Security of such series.
The definitive Securities shall be printed, lithographed
or engraved or may be produced in any other manner, all as determined by the Officer (or any Person designated in writing by an Officer
of the Company as authorized to execute and deliver the Securities) executing such Securities, as evidenced by his or her execution of
such Securities.
Section 202. Form of
Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301
for the Securities evidenced thereby or as required by Applicable Procedures, every Global Security authenticated and delivered hereunder
shall bear a legend in substantially the following form:
[Insert, if applicable — UNLESS THIS
NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED
TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED
TO ON THE REVERSE HEREOF.]
[Insert, if applicable — THIS SECURITY
IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREIN AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE
THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY
IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
Section 203. Form of
Trustee’s Certificate of Authentication.
The Trustee’s certificates of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated:
| |
[____________],
as Trustee |
| |
|
| |
By: |
|
| |
Authorized Signatory |
Article III
THE SECURITIES
Section 301. Amount
Unlimited; Issuable in Series.
The aggregate principal amount of Securities which
may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series.
There shall be established in or pursuant to (a) a Board Resolution or pursuant to authority granted by a Board Resolution and, subject
to Section 303, set forth, or determined in the manner provided, in an Officer’s Certificate, or (b) one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
| (1) | the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other series); |
| (2) | the limit, if any, on the aggregate principal amount of the Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities of the series pursuant to Section 304, Section 305, Section 306, Section 906, Section 1107 or
Section 1405 and except for any Securities which, pursuant to Section 303, are deemed never to have been authenticated and delivered
hereunder); provided, however, that the authorized aggregate principal amount of such series may from time to time be increased
above such amount by a Board Resolution to such effect; |
| (3) | the price or prices at which the Securities will be sold; |
| (4) | the Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest; |
| (5) | the date or dates on which the principal and premium, if any, of any Securities of the series is payable or the method used to determine
or extend those dates; |
| (6) | the rate or rates at which any Securities of the series shall bear interest, if any, or the method by which such rate or rates shall
be determined, the date or dates from which any such interest shall accrue, or the method by which such date or dates shall be determined,
the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date, if any, for any such interest payable
on any Interest Payment Date, or the method by which such date or dates shall be determined, and the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve 30-day months, the right, if any, to extend or defer interest payments and the
duration of such extension or deferral; |
| (7) | the place or places where the principal of and any premium and interest on any Securities of the series shall be payable, the place
or places where the Securities of such series may be presented for registration of transfer or exchange, the place or places where notices
and demands to or upon the Company in respect of the Securities of such series may be made and the manner in which any payment may be
made; |
| (8) | the period or periods within which or the date or dates on which, the price or prices at which, the currency or currency units in
which, and the terms and conditions upon which any Securities of the series may be redeemed, in whole or in part, at the option of the
Company and, if other than by a Board Resolution, the manner in which any election by the Company to redeem the Securities shall be evidenced; |
| (9) | the obligation or the right, if any, of the Company to redeem or purchase any Securities of the series pursuant to any sinking fund,
amortization, or analogous provisions or at the option of the Holder thereof and the period or periods within which, the price or prices
at which, the currency or currency units in which, and the terms and conditions upon which any Securities of the series shall be redeemed
or purchased, in whole or in part, pursuant to such obligation; |
| (10) | if other than denominations of $2,000 and any integral multiple of $1,000 in excess thereof, the denominations in which any Securities
of the series shall be issuable; |
| (11) | if other than the Trustee, the identity of each Security Registrar and/or Paying Agent; |
| (12) | if the amount of principal of or premium, if any, or interest on any Securities of the series may be determined with reference to
a financial or economic measure or index or pursuant to a formula, the manner in which such amounts shall be determined; |
| (13) | if other than the currency of the United States of America, the currency, currencies or currency units in which the principal of or
premium, if any, or interest on any Securities of the series shall be payable and the manner of determining the equivalent thereof in
the currency of the United States of America for any purpose, including for purposes of the definition of “Outstanding”
in Section 101; |
| (14) | if the principal of or premium, if any, or interest on any Securities of the series is to be payable, at the election of the Company
or the Holder thereof, in one or more currencies or currency units other than that or those in which such Securities are stated to be
payable, the currency, currencies or currency units in which the principal of or premium, if any, or interest on such Securities as to
which such election is made shall be payable, the periods within which or the dates on which and the terms and conditions upon which such
election is to be made and the amount so payable (or the manner in which such amount shall be determined); |
| (15) | if the provisions of Section 401 relating to the satisfaction and discharge of this Indenture shall apply to the Securities of
that series; or if provisions for the satisfaction and discharge of this Indenture other than as set forth in Section 401 shall apply
to the Securities of that series; |
| (16) | if other than the entire principal amount thereof, the portion of the principal amount of any Securities of the series which shall
be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502 or the method by which such portion shall
be determined; |
| (17) | if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date
for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other
than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case,
the manner in which such amount deemed to be the principal amount shall be determined); |
| (18) | if other than by a Board Resolution, the manner in which any election by the Company to defease any Securities of the series pursuant
to Section 1302 or Section 1303 shall be evidenced; whether any Securities of the series other than Securities denominated in
U.S. dollars and bearing interest at a fixed rate are to be subject to Section 1302 or Section 1303; or, in the case of Securities
denominated in U.S. dollars and bearing interest at a fixed rate, if applicable, that the Securities of the series, in whole or any specified
part, shall not be defeasible pursuant to Section 1302 or Section 1303 or both such Sections; |
| (19) | if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne by any
such Global Security in addition to or in lieu of that set forth in Section 202 and any circumstances in addition to or in lieu of
those set forth in clause (2) of the last paragraph of Section 305 in which any such Global Security may be exchanged in whole
or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered, in the name or names
of Persons other than the Depositary for such Global Security or a nominee thereof; |
| (20) | any addition to, deletion from or change in the Events of Default which applies to any Securities of the series and any change in
the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant
to Section 502; |
| (21) | any addition to, deletion from or change in the covenants set forth in Article X which applies to Securities of the series; |
| (22) | the terms of any right to convert or exchange Securities of such series into any other securities or property of the Company or of
any other corporation or Person, and the additions or changes, if any, to this Indenture with respect to the Securities of such series
to permit or facilitate such conversion or exchange; |
| (23) | whether the Securities of the series will be guaranteed by any Person or Persons and, if so, the identity of such Person or Persons,
the terms and conditions upon which such Securities shall be guaranteed and, if applicable, the terms and conditions upon which such guarantees
may be subordinated to other indebtedness of the respective guarantors; |
| (24) | whether the Securities of the series will be secured by any collateral and, if so, the terms and conditions upon which such Securities
shall be secured and, if applicable, upon which such liens may be subordinated to other liens securing other indebtedness of the Company
or any guarantor; |
| (25) | whether the Securities will be issued in a transaction registered under the Securities Act and any restriction or condition on the
transferability of the Securities of such series; |
| (26) | the exchanges, if any, on which the Securities may be listed; and |
| (27) | any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by
Section 901). |
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 the Board Resolution referred to above or
pursuant to authority granted by one or more Board Resolutions and, subject to Section 303, set forth, or determined in the manner
provided, in the Officer’s Certificate referred to above or in any such indenture supplemental hereto. All Securities of any one
series need not be issued at one time and, unless otherwise provided in or pursuant to the Board Resolution referred to above and, subject
to Section 303, set forth, or determined in the manner provided, in the Officer’s Certificate referred to above or pursuant
to authority granted by one or more Board Resolutions or in any such indenture supplemental hereto with respect to a series of Securities,
additional Securities of a series may be issued, at the option of the Company, without the consent of any Holder, at any time and from
time to time.
If any of the terms of the series are established
by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officer’s Certificate setting
forth the terms of the series.
Section 302. Denominations.
The Securities of each series shall be issuable
only in registered form without coupons and only in such denominations as shall be specified as contemplated by Section 301. In the
absence of any such specified denomination with respect to the Securities of any series, the Securities of such series shall be issuable
in denominations of $2,000 and any integral multiple of $1,000 in excess thereof.
Section 303. Execution,
Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the
Company by an Officer of the Company (or any Person designated in writing by an Officer of the Company as authorized to execute and deliver
the Securities). The signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices
at the date of such Securities.
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 an Officer’s Certificate and a Company Order for the authentication and delivery of such Securities, and the Trustee
in accordance with the Company Order shall authenticate and deliver such Securities. If the form or terms of the Securities of the series
have been established by or pursuant to one or more Board Resolutions or pursuant to authority granted by one or more Board Resolutions
as permitted by Section 201 and Section 301, in authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be provided with, and, subject to Section 601, shall be fully
protected in relying upon, an Opinion of Counsel stating,
| (1) | if the form of such Securities has been established by or pursuant to Board Resolution or pursuant to authority granted by one or
more Board Resolutions as permitted by Section 201, that such form has been established in conformity with the provisions of this
Indenture; |
| (2) | if the terms of such Securities have been established by or pursuant to Board Resolution or pursuant to authority granted by one or
more Board Resolutions as permitted by Section 301, that such terms have been established in conformity with the provisions of this
Indenture; and |
| (3) | that such Securities, when authenticated by the Trustee and issued and delivered by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company enforceable in accordance with
their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors’ rights generally, (ii) general equitable principles and (iii) an implied covenant
of good faith and fair dealing. |
If such form or terms have been so established,
the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will materially
adversely affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301
and of the preceding paragraph of this Section 303, if all Securities of a series are not to be originally issued at one time, including
in the event that the aggregate principal amount of a series of Outstanding Securities is increased as contemplated by Section 301,
it shall not be necessary to deliver the Officer’s Certificate, Board Resolution or supplemental indenture otherwise required pursuant
to Section 301 or the Company Order and Opinion of Counsel otherwise required pursuant to this Section 303 at or prior to the
authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance
of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially
in the form provided for herein executed by the Trustee by manual, facsimile or electronic signature, and such certificate upon any Security
shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancellation as provided in Section 309, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of
this Indenture.
Section 304. Temporary
Securities.
Pending the preparation of definitive Securities
of any series, the Company may execute, and, upon Company Order, the Trustee shall authenticate and deliver, temporary Securities which
are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities of such series in lieu of which they are issued and with such appropriate insertions, omissions, substitutions
and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued,
the Company will cause definitive Securities of such series to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for such series, without
charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized
denominations and of like tenor and aggregate principal amount. Until so exchanged, the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive Securities of such series and tenor.
Section 305. Registration,
Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate
Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency of the Company in a Place
of Payment being herein sometimes collectively referred to as the “Security Register”) in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities. The Trustee
is hereby appointed “Security Registrar” for the purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of
any Security of a series at the office or agency of the Company in a Place of Payment for such series, the Company shall execute, and
the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the
same series, of any authorized denominations and of like tenor and principal amount.
At the option of the Holder, Securities of any
series may be exchanged for other Securities of the same series, of any authorized denominations and of like tenor and principal amount,
upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled
to receive.
All Securities issued upon any registration of
transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration
of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or such Holder’s
attorney duly authorized in writing.
No service charge shall be made for any registration
of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to
Section 304, Section 906, Section 1107 or Section 1405 not involving any transfer.
If the Securities of any series (or of any series
and specified tenor) are to be redeemed in part, the Company shall not be required (A) to issue, register the transfer of or exchange
any Securities of such series (or of such series and specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any such Securities selected for redemption under Section 1103
and ending at the close of business on the day of such mailing, or (B) to register the transfer of or exchange any Security so selected
for redemption, in whole or in part, except the unredeemed portion of any Security being redeemed in part.
The provisions of clauses (1), (2), (3) and
(4) of this paragraph shall apply only to Global Securities:
| (1) | Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security
shall constitute a single Security for all purposes of this Indenture. |
| (2) | Notwithstanding any other provision in this Indenture, and subject to such applicable provisions, if any, as may be specified as contemplated
by Section 301, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security
in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee thereof
unless (A) such Depositary has notified the Company that it is unwilling or unable or no longer permitted under applicable law to
continue as Depositary for such Global Security, (B) there shall have occurred and be continuing an Event of Default with respect
to such Global Security, (C) the Company so directs the Trustee by a Company Order or (D) there shall exist such circumstances,
if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by Section 301. |
| (3) | Subject to clause (2) above, and subject to such applicable provisions, if any, as may be specified as contemplated by Section 301,
any exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global
Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct. |
| (4) | Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or
any portion thereof, whether pursuant to this Section 305, Section 304, Section 306, Section 906, Section 1107
or Section 1405 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security
is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof. |
The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law
with respect to any transfer of any interest in any Security (including any transfers between or among Depositary participants or beneficial
owners of interests in any Global Security) other than to require delivery of such certificates and other documentation or evidence as
are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
Neither the Trustee nor any agent of the Trustee
shall have any responsibility for any actions taken or not taken by the Depositary.
Section 306. Mutilated,
Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series
and of like tenor and principal amount and bearing a number not contemporaneously outstanding and shall cancel and dispose of such mutilated
security in accordance with its customary procedures.
If there shall be delivered to the Company and
the Trustee (1) evidence to their satisfaction of the destruction, loss or theft of any Security and (2) such security or indemnity
as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or
stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security,
pay such Security.
Upon the issuance of any new Security under this
Section 306, 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 counsel to the Company and the fees and expenses of the
Trustee and its counsel) connected therewith.
Every new Security of any series issued pursuant
to this Section 306 in lieu of any mutilated, destroyed, lost or stolen Security shall constitute an original additional contractual
obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of such series
duly issued hereunder.
The provisions of this Section 306 are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities.
Section 307. Payment
of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by
Section 301 with respect to any series of Securities, interest on any Security which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which
is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”)
shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below:
| (1) | The Company may elect to make payment of any Defaulted Interest payable on Securities of a series to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money 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 in consultation with the Company shall fix a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the 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 given to each Holder of Securities of such series in the manner set forth in Section 106, 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 so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to
the following clause (2). |
| (2) | The Company may make payment of any Defaulted Interest on the Securities of any series 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. |
Subject to the foregoing provisions of this Section 307,
each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall
carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
In the case of any Security which is converted
after any Regular Record Date and on or prior to the next succeeding Interest Payment Date (other than any Security whose Maturity is
prior to such Interest Payment Date), interest whose Stated Maturity is on such Interest Payment Date shall be payable on such Interest
Payment Date notwithstanding such conversion, and such interest (whether or not punctually paid or made available for payment) shall be
paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on such
Regular Record Date. Except as otherwise expressly provided in the immediately preceding sentence, in the case of any Security which is
converted, interest whose Stated Maturity is after the date of conversion of such Security shall not be payable. Notwithstanding the foregoing,
the terms of any Security that may be converted may provide that the provisions of this paragraph do not apply, or apply with such additions,
changes or omissions as may be provided thereby, to such Security.
Section 308. Persons
Deemed Owners.
Prior to due presentment of a Security for registration
of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of principal of and premium, if any, and, subject to Section 307,
any interest on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
Section 309. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or conversion or for credit against any sinking fund payment shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section 309,
except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of in accordance with
its customary procedures. The Trustee shall provide the Company a list of all Securities that have been cancelled from time to time as
requested by the Company.
Section 310. Computation
of Interest.
Except as otherwise specified as contemplated by
Section 301 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year
of twelve 30-day months.
Section 311. CUSIP
Numbers.
The Company in issuing any series of the Securities
may use “CUSIP” or “ISIN” numbers and/or other similar numbers, if then generally in use, and thereafter with
respect to such series, the Trustee may use such numbers in any notice of redemption with respect to such series; provided that
any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities of
such series or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed
on the Securities of such series, and any such redemption shall not be affected by any defect in or omission of such numbers.
Section 312. Original
Issue Discount.
If any of the Securities is an Original Issue Discount
Security, the Company shall file with the Trustee promptly at the end of each calendar year (1) a written notice specifying the amount
of original issue discount (including daily rates and accrual periods) accrued on such Outstanding Original Issue Discount Securities
as of the end of such year and (2) such other specific information relating to such original issue discount as may then be relevant
under the Internal Revenue Code.
Article IV
SATISFACTION AND DISCHARGE
Section 401. Satisfaction
and Discharge of Indenture.
This Indenture shall, upon Company Request, cease
to be of further effect with respect to any series of Securities specified in such Company Request (except as to any surviving rights
of registration of transfer or exchange of Securities of such series herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series, when:
| (A) | all Securities of such series theretofore authenticated and delivered (other than (i) Securities which have been mutilated, destroyed,
lost or stolen and which have been replaced or paid as provided in Section 306 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1004) have been delivered to the Trustee for cancellation; or |
| (B) | all such Securities of such series not theretofore delivered to the Trustee for cancellation |
| (i) | have become due and payable, or |
| (ii) | will become due and payable at their Stated Maturity within one year of the date of deposit, or |
| (iii) | are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company, |
and the Company, in the case of (i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee as trust funds in trust for such purpose money in an amount sufficient to pay
and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and
premium, if any, and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
| (2) | the Company has paid or caused to be paid all other sums payable hereunder by the Company; and |
| (3) | the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied with. |
Notwithstanding the satisfaction and discharge
of this Indenture, the obligations of the Company to the Trustee under Section 607 and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section 401, the obligations of the Trustee under Section 402
and the last paragraph of Section 1004 shall survive such satisfaction and discharge.
Section 402. Application
of Trust Money.
Subject to the provisions of the last paragraph
of Section 1004, all money deposited with the Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance
with the provisions of the applicable series of Securities and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal
and premium, if any, and interest for whose payment such money has been deposited with the Trustee. All money deposited with the Trustee
pursuant to Section 401 (and held by it or any Paying Agent) for the payment of Securities subsequently converted into other property
shall be returned to the Company upon Company Request. The Company may direct, by a Company Order, the investment of any money deposited
with the Trustee pursuant to Section 401, without distinction between principal and income, in (1) United States Treasury securities
with a maturity of one year or less or (2) a money market fund that invests solely in short-term United States Treasury securities
(including money market funds for which the Trustee or an affiliate of the Trustee serves as investment advisor, administrator, shareholder,
servicing agent and/or custodian or sub-custodian, notwithstanding that (a) the Trustee charges and collects fees and expenses from
such funds for services rendered and (b) the Trustee charges and collects fees and expenses for services rendered pursuant to this
Indenture at any time) and from time to time the Company may direct the reinvestment of all or a portion of such money in other securities
or funds meeting the criteria specified in clause (1) or (2) of this Section 402.
Article V
REMEDIES
Section 501. Events
of Default.
Except as may be otherwise provided pursuant to
Section 301 for Securities of any series, an “Event of Default” means, whenever used herein or in a Security issued
hereunder with respect to Securities of any series, any one of the following events (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or governmental body):
| (1) | the Company defaults in the payment of any installment of interest on any Security of such series for 30 days after becoming due; |
| (2) | the Company defaults in the payment of the principal of or premium, if any, on any Security of such series when the same becomes due
and payable at its Stated Maturity, upon optional redemption, upon declaration or otherwise; |
| (3) | the Company defaults in the performance of, or breaches any of its covenants and agreements in respect of any Security of such series
contained in this Indenture or in the Securities of such series (other than a covenant or agreement, a default in the performance of which
or a breach of which is elsewhere in this Section specifically dealt with or that has expressly been included in this Indenture solely
for the benefit of a series of Securities other than that series), and such default or breach continues for a period of 90 days after
the notice specified below; |
| (4) | the Company, pursuant to or within the meaning of the Bankruptcy Law (as defined below): |
| (A) | commences a voluntary case or proceeding; |
| (B) | consents to the entry of an order for relief against it in an involuntary case or proceeding; |
| (C) | consents to the appointment of a Custodian (as defined below) of it or for all or substantially all of its property; |
| (D) | makes a general assignment for the benefit of its creditors; |
| (E) | files a petition in bankruptcy or answer or consent seeking reorganization or relief; |
| (F) | consents to the filing of such petition or the appointment of or taking possession by a Custodian; or |
| (G) | takes any comparable action under any foreign laws relating to insolvency; |
| (5) | a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: |
| (A) | is for relief against the Company in an involuntary case, or adjudicates the Company insolvent or bankrupt; |
| (B) | appoints a Custodian of the Company or for all or substantially all of the property of the Company; or |
| (C) | orders the winding-up or liquidation of the Company (or any similar relief is granted under any foreign laws); |
| (D) | and the order or decree remains unstayed and in effect for 90 consecutive days; or |
| (6) | any other Event of Default provided with respect to Securities of such series occurs. |
The term “Bankruptcy Law” means
Title 11, United States Code, or any similar federal or state or foreign law for the relief of debtors. The term “Custodian”
means any custodian, receiver, trustee, assignee, liquidator or other similar official under any Bankruptcy Law.
A Default with respect to Securities of any series
under clause (3) of this Section 501 shall not be an Event of Default until the Trustee (by written notice to the Company) or
the Holders of at least 25% in aggregate principal amount of the outstanding Securities of such series (by written notice to the Company
and the Trustee) gives notice of the Default and the Company does not cure such Default within the time specified in clause (3) after
receipt of such notice. Such notice must specify the Default, demand that it be remedied and state that such notice is a “Notice
of Default.”
Section 502. Acceleration
of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities
of any series at the time Outstanding (other than an Event of Default specified in Section 501(4) or Section 501(5) with
respect to the Company) occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities of such series may declare the principal amount of all the Securities of such series (or,
if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may
be specified by the terms thereof), together with any accrued and unpaid interest thereon, to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration, such principal amount (or specified
amount), together with any accrued and unpaid interest thereon, shall become immediately due and payable. If an Event of Default specified
in Section 501(4) or Section 501(5) with respect to the Securities of any series at the time Outstanding occurs, the
principal amount of all the Securities of such series (or, in the case of any Security of such series which specifies an amount to be
due and payable thereon upon acceleration of the Maturity thereof, such amount as may be specified by the terms thereof), together with
any accrued and unpaid interest thereon, shall automatically, and without any declaration or other action on the part of the Trustee or
any Holder, become immediately due and payable. Upon payment of such amount, all obligations of the Company in respect of the payment
of principal and interest of the Securities of such series shall terminate.
Except as may otherwise be provided pursuant to
Section 301 for all or any specific Securities of any series, at any time after such a declaration of acceleration with respect to
the Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee
as hereinafter in this Article V provided, the Holders of a majority in aggregate principal amount of the Outstanding Securities
of such series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if:
| (1) | the Company has paid or deposited with the Trustee a sum sufficient to pay: |
| (A) | all overdue interest on all Securities of such series, |
| (B) | the principal of and premium, if any, on any Securities of such series which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed therefor in the Securities of such series, |
| (C) | to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in
such Securities, and |
| (D) | all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel; and |
| (2) | all Events of Default with respect to Securities of such series, other than the non-payment of the principal of Securities of such
series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 512. |
No such rescission shall affect any subsequent
default or impair any right consequent thereon.
Section 503. Collection
of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if (1) default
is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period
of 30 days or (2) default is made in the payment of the principal of or premium, if any, on any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due
and payable on such Securities for principal and premium, if any, and interest and, to the extent that payment of such interest shall
be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate or rates prescribed therefor
in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities
of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of
the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem necessary to protect and enforce
any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 504. Trustee
May File Proofs of Claim.
In case of any judicial proceeding relative to
the Company (or any other obligor upon the Securities), its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims
of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and receive any
moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make
such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it and any predecessor Trustee under Section 607.
No provision of this Indenture shall be deemed
to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding; provided, however, that the Trustee may, on behalf of the Holders, vote
for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.
Section 505. Trustee
May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture
or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements
and advances of the Trustee, any predecessor Trustee under Section 607, its agents and counsel, be for the ratable benefit of the
Holders of the Securities in respect of which such judgment has been recovered.
Section 506. Application
of Money Collected.
Any money or property collected by the Trustee
pursuant to this Article V shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money or property on account of principal or premium, if any, or interest, upon presentation of the Securities and
the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 607;
SECOND: To the payment of the amounts then due
and unpaid for principal of and premium, if any, and interest on the Securities in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any kind (other than contractual subordination agreements pursuant to the
Indenture), according to the amounts due and payable on such Securities for principal and premium, if any, and interest, respectively;
and
THIRD: To the payment of the remainder, if any,
to the Company.
Section 507. Limitation
on Suits.
No Holder of any Security of any series shall have
any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver, assignee,
trustee, liquidator or sequestrator (or similar official) or for any other remedy hereunder, unless:
| (1) | such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of
such series; |
| (2) | the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder; |
| (3) | such Holder or Holders have offered, and if requested, provided to the Trustee indemnity reasonably satisfactory to it against the
costs, expenses and liabilities to be incurred in compliance with such request; |
| (4) | the Trustee has failed to institute any such proceeding for 60 days after its receipt of such notice, request and offer of indemnity;
and |
| (5) | no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority
in aggregate principal amount of the Outstanding Securities of such series; |
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders (it being
understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions are unduly prejudicial to such
Holders) or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all
of such Holders.
Section 508. Unconditional
Right of Holders to Receive Principal, Premium, and Interest and to Convert Securities.
Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and premium,
if any, and, subject to Section 307, interest on such Security on the respective Stated Maturities expressed in such Security (or,
in the case of redemption or repayment, on the Redemption Date or date for repayment, as the case may be, and, if the terms of such Security
so provide, to convert such Security in accordance with its terms) and to institute suit for the enforcement of any such payment and,
if applicable, any such right to convert, and such rights shall not be impaired without the consent of such Holder.
Section 509. Rights
and Remedies Cumulative.
Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder
or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 510. Delay
or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder
of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute
a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article V or by law to the
Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
Section 511. Control
by Holders.
The Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities
of such series; provided that:
| (1) | such direction shall not be in conflict with any rule of law or with this Indenture, and |
| (2) | the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. |
Section 512. Waiver
of Past Defaults.
The Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any
past default hereunder with respect to such series and its consequences, except a default
| (1) | in the payment of the principal of or premium, if any, or interest on any Security of such series, or |
| (2) | in respect of a covenant or provision hereof which under Article IX cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected. |
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture, but no such waiver shall extend
to any subsequent or other default or impair any right consequent thereon.
Section 513. Undertaking
for Costs.
In any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may
require any party litigant in such suit to file an undertaking to pay the costs of such suit (including the reasonable compensation, expenses
and disbursements of its agents and counsel), and may assess reasonable costs against any such party litigant, in the manner and to the
extent provided in the Trust Indenture Act; provided that neither this Section 513 nor the Trust Indenture Act shall be deemed
to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the Company or the Trustee,
a suit by a Holder under Section 508, or a suit by Holders of more than 10% in aggregate principal amount of the Outstanding Securities.
Section 514. Waiver
of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage
of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been enacted.
Section 515. Restoration
of Rights and Remedies.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding,
the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Article VI
THE TRUSTEE
Section 601. Certain
Duties and Responsibilities of Trustee.
| (1) | Except during the continuance of an Event of Default with respect to any series of Securities, |
| (A) | the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture with respect to
the Securities of such series, and no implied covenants or obligations shall be read into this Indenture against the Trustee with respect
to such series; and |
| (B) | in the absence of bad faith on its part, the Trustee may rely with respect to the Securities of such series, as to the truth of the
statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform
to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated
therein). |
| (2) | In case an Event of Default with respect to any series of Securities has occurred and is continuing, the Trustee shall exercise such
of the rights and powers vested in it by this Indenture with respect to the Securities of such series, and use the same degree of care
and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. |
| (3) | 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: |
| (A) | this Section 601(3) shall not be construed to limit the effect of Section 601(1); |
| (B) | the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts; |
| (C) | the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in aggregate principal amount of the Outstanding Securities of any series, determined as provided
in Section 101, Section 104 and Section 511, 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 such series; and |
| (D) | no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. |
| (4) | Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of this Section 601. |
Section 602. Notice
of Defaults.
If a Default or an Event of Default occurs with
respect to Securities of any series and is continuing and if it is actually known to the Trustee, the Trustee shall send to each Holder
of Securities of such series notice of the Default within 90 days after it is known to a Responsible Officer or written notice of it is
received by a Responsible Officer of the Trustee. Except in the case of a Default in payment of principal of or interest on any Security,
the Trustee may withhold the 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 withholding the notice is not opposed to the interests of Holders
of Securities of such series.
Section 603. Certain
Rights of Trustee.
Subject to the provisions of Section 601:
| (1) | the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; |
| (2) | if so requested by the Trustee, any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company
Request or Company Order, and any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution; |
| (3) | whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, conclusively rely upon an Officer’s Certificate; |
| (4) | the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; |
| (5) | the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security
or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request
or direction; |
| (6) | the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or
additional liability of any kind by reason of such inquiry or investigation; |
| (7) | 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; |
| (8) | the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder and to its agents; |
| (9) | the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed
by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; |
| (10) | in no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind
whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action; |
| (11) | in no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising
out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents,
acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, epidemics or pandemics and interruptions,
loss or malfunctions of utilities, communications or computer (software and hardware) services (it being understood that the Trustee shall
use reasonable efforts which are consistent with accepted practices in the banking industry to avoid and mitigate the effects of such
occurrences and to resume performance as soon as practicable under the circumstances); |
| (12) | the Trustee shall not be deemed to have notice of any Default or Event of Default unless written notice of any event which is in fact
such a default shall have been received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee, and such
notice references the Securities and this Indenture; and |
| (13) | The Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized
at such time to take specified actions pursuant to this Indenture. |
Section 604. Not
Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities,
except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by the Company of Securities or the proceeds thereof.
Section 605. May Hold
Securities.
The Trustee, any Paying Agent, any Security Registrar
or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject
to Section 608 and Section 613, may otherwise deal with the Company with the same rights it would have if it were not Trustee,
Paying Agent, Security Registrar or such other agent.
Section 606. Money
Held in Trust.
Money held by the Trustee in trust hereunder 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 money received by it hereunder
except as otherwise agreed with the Company.
Section 607. Compensation
and Reimbursement.
The Company agrees
| (1) | to pay to the Trustee from time to time such reasonable compensation as shall be agreed to in writing between the Company and the
Trustee for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust); |
| (2) | except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation
and the reasonable expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable
to its own negligence or willful misconduct, and the Trustee shall provide the Company reasonable notice of any expenditure not in the
ordinary course of business; and |
| (3) | to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or willful
misconduct on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including
the reasonable costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder. |
The Trustee shall notify the Company promptly of
any claim of which a Responsible Officer has received written notice for which it may seek indemnity.
When the Trustee incurs expenses or renders services
in connection with an Event of Default specified in Section 501(4) or Section 501(5), the expenses (including the reasonable
charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under
any applicable federal or state bankruptcy, insolvency or other similar law.
The Trustee shall have a lien prior to the Securities
as to all property and funds held by it hereunder for any amount owing it or any predecessor Trustee pursuant to this Section 607,
except with respect to funds held in trust for the benefit of the Holders of Securities.
The provisions of this Section 607 shall survive
the satisfaction and discharge of this Indenture and the defeasance of the Securities.
Section 608. Conflicting
Interests.
If the Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and
in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
To the extent permitted by the Trust Indenture
Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series.
Section 609. Corporate
Trustee Required; Eligibility.
There shall at all times be one (and only one)
Trustee hereunder with respect to the Securities of each series, which may be Trustee hereunder for Securities of one or more other series.
Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus
of at least $50,000,000. If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of
its supervising or examining authority, then for the purposes of this Section 609 and to the extent permitted by the Trust Indenture
Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent
annual report of condition so published. If at any time the Trustee with respect to the Securities of any series shall cease to be eligible
in accordance with the provisions of this Section 609, it shall resign immediately in the manner and with the effect hereinafter
specified in this Article VI.
Section 610. Resignation
and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article VI shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section 611.
The Trustee may resign at any time with respect
to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee, at the expense of the Company, may petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
The Trustee may be removed at any time with respect
to the Securities of any series by Act of the Holders of a majority in aggregate principal amount of the Outstanding Securities of such
series, upon written notice delivered to the Trustee and to the Company. If the instrument of acceptance by a successor Trustee required
by Section 611 shall not have been delivered to the Trustee within 30 days after the giving of such notice of removal, the Trustee
being removed, at the expense of the Company, may petition any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
If at any time:
| (1) | the Trustee shall fail to comply with Section 608 after written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or |
| (2) | the Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Company
or by any such Holder, or |
| (3) | the Trustee shall become incapable of acting or shall be adjudged bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed 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, (A) the Company may remove the Trustee
with respect to all Securities or (B) subject to Section 513, Holders of 10% in aggregate principal amount of Securities of
any series who have been bona fide Holders of such Securities for at least six months may, on behalf of themselves and all others
similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the
appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more
series, the Company shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If a successor Trustee with respect to the Securities of any series shall be appointed by
Act of the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series delivered to the Company and
the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 611, become the successor Trustee with respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 611, Holders of 10% in
aggregate principal amount of Securities of any series who have been bona fide Holders of Securities of such series for at least
six months may, on behalf of themselves and all others similarly situated, petition any court of competent jurisdiction for the appointment
of a successor Trustee with respect to the Securities of such series.
The Company shall give notice of each resignation
and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect
to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 106. Each notice shall
include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
Section 611. Acceptance
of Appointment by Successor.
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 a written 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 a written 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.
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 (1) shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that
all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the
retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust
and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered
by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the 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 all 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.
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 the first or second preceding paragraph, as the case may be.
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 VI.
Section 612. Merger,
Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder; provided that such corporation shall be otherwise qualified and eligible under this
Article VI, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion, consolidation
or sale to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities; and in case at that time any Securities shall not have been authenticated,
any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor
to the Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Securities or in this Indenture
provided that the certificate of the Trustee shall have.
Section 613. Preferential
Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor
of the Company (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding
the collection of claims against the Company (or any such other obligor)
Section 614. Appointment
of Authenticating Agent.
The Trustee may appoint an Authenticating Agent
or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon original issue and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 306,
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. Wherever reference is made in this Indenture to the authentication and delivery of Securities
by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery
on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any state thereof or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by federal or state
authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section 614, the combined capital and surplus of such Authenticating
Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any
time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 614, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in this Section 614.
Any corporation into which an Authenticating Agent
may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which such Authenticating Agent shall be a party, or any corporation succeeding to all or substantially all of the corporate agency
or corporate trust business of an Authenticating Agent shall be the successor Authenticating Agent hereunder, provided such corporation
shall be otherwise eligible under this Section 614, without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time
by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions
of this Section 614, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall
give notice of such appointment in the manner provided in Section 106 to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating
Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section 614.
The Company agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its services under this Section 614.
If an appointment with respect to one or more series
is made pursuant to this Section 614, the Securities of such series may have endorsed thereon, in addition to the Trustee’s
certificate of authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
| Dated: __________________ |
|
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[_____________],
As Trustee |
| |
|
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By: |
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[_____________], |
| |
As Authenticating Agent |
| |
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By: |
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Authorized Officer |
Article VII
HOLDERS’ LISTS AND REPORTS BY TRUSTEE
AND COMPANY
Section 701. Company
to Furnish Trustee Names and Addresses of Holders.
If the Trustee is not the Security Registrar, the
Company shall cause the Security Registrar to furnish to the Trustee, in writing at least five Business Days before each Interest Payment
Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Holders of Securities of each series.
Section 702. Preservation
of Information; Communications to Holders.
The Trustee shall preserve, in as current a form
as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided
in Section 701 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee
may destroy any list furnished to it as provided in Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other
Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the
Trustee, shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act.
Section 703. Reports
by Trustee.
Within 60 days after each May 15 in each year
in which any of the Securities are Outstanding, the Trustee shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act. The Trustee shall promptly deliver to the Company a copy
of any report it delivers to Holders pursuant to this Section 703.
A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each stock exchange and automated quotation system, if any, upon which any
Securities are listed, with the Commission and with the Company. The Company will notify the Trustee when any Securities are listed on
any stock exchange or automated quotation system or delisted therefrom.
Section 704. Reports
by Company.
The Company shall file with the Trustee, and transmit
to the Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture
Act. Delivery of such reports, information and documents to the Trustee is for informational purposes only and shall not constitute a
representation or warranty as to the accuracy or completeness of the reports, information and documents. All required reports, information
and documents referred to in this Section 704 shall be deemed filed with the Trustee and transmitted to the Holders at the time such
reports, information or documents are publicly filed with the Commission via the Commission’s EDGAR filing system (or any successor
system). For purposes of clarification, the foregoing sentence does not impose on the Trustee any duty to search for or obtain any electronic
or other filings that the Company makes with the Commission, regardless of whether such filings are periodic, supplemental or otherwise.
The Trustee’s receipt of such shall not constitute constructive notice or knowledge of any information contained therein or determinable
from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee
is entitled to rely exclusively on Officer’s Certificates).
Article VIII
CONSOLIDATION, MERGER
AND SALE OF ASSETS
Section 801. Company
May Merge or Transfer Assets Only on Certain Terms.
The Company shall not consolidate with or merge
with or into, or sell, transfer, lease or convey all or substantially all of its properties and assets to, in one transaction or a series
of related transactions, any other Person, unless:
| (1) | the Company shall be the continuing entity, or the resulting, surviving or transferee Person (the “Successor”)
shall be a corporation, limited liability company or other entity (if such corporation, limited liability company or other entity is not
the Company) organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and
the Successor (if not the Company) shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee,
in form reasonably satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture and, for each
Security that by its terms provides for conversion, shall have provided for the right to convert such Security in accordance with its
terms; |
| (2) | immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and |
| (3) | the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such transaction
and such supplemental indenture, if any, complies with this Indenture (except that such Opinion of Counsel need not opine as to clause
(2) above). |
Notwithstanding anything else herein, (A) the
first paragraph of this Section 801 shall not apply to the conveyance, transfer or lease of properties or assets between or among
the Company and its Subsidiaries and (B) clauses (2) and (3) of the first paragraph of this Section 801 shall not
apply to (i) the Company consolidating with or merging into a Subsidiary of the Company for any purpose or (ii) any Subsidiary
of the Company consolidating with or merging into the Company for any purpose.
Section 802. Successor
Corporation Substituted.
The Successor shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under the Indenture, with the same effect as if the Successor had been an
original party to this Indenture, and the Company shall be released from all its liabilities and obligations under this Indenture and
the Securities.
Article IX
SUPPLEMENTAL INDENTURES
Section 901. Supplemental
Indentures Without Consent of Holders.
Without the consent of any Holders, the Company
and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
| (1) | to add to the covenants for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the Company; |
| (2) | to evidence the succession of another Person to the Company, or successive successions, and the assumption by the Successor of the
covenants, agreements and obligations of the Company pursuant to Article VIII; |
| (3) | to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional
Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are
expressly being included solely for the benefit of such series); |
| (4) | to add one or more guarantees for the benefit of Holders of the Securities; |
| (5) | to secure the Securities; |
| (6) | to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611; |
| (7) | subject to any limitations established pursuant to Section 301, to provide for the issuance of additional Securities of any series; |
| (8) | to establish the form or terms of Securities of any series as permitted by Section 201 and Section 301; |
| (9) | to comply with the rules of any applicable Depositary; |
| (10) | to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance
of Securities in uncertificated form; |
| (11) | to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities; provided
that any such addition, change or elimination (A) shall neither (i) apply to any Security of any series created prior to the
execution of such supplemental indenture and entitled to the benefit of such provision nor (ii) modify the rights of the Holder of
any such Security with respect to such provision or (B) shall become effective only when there is no Security described in clause
(A)(i) Outstanding; |
| (12) | to cure any ambiguity or to correct or supplement any provision of this Indenture which may be defective or inconsistent with any
other provision herein; |
| (13) | to change any other provision under this Indenture; provided that such action pursuant to this clause (13) shall not adversely
affect the interests of the Holders of Securities of any Outstanding series in any material respect; |
| (14) | to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance
and discharge of any series of Securities pursuant to Section 401, Section 1302 and Section 1303; provided that
any such action shall not adversely affect the interests of the Holders of Securities of such series or any other series of Securities
in any material respect; |
| (15) | to comply with the rules or regulations of any securities exchange or automated quotation system on which any of the Securities
may be listed or traded; |
| (16) | to conform any provision of this Indenture, any supplemental indenture, one or more series of Securities or any related guarantees
or security documents, if any, to the description of such Securities contained in the Company’s prospectus, prospectus supplement,
offering memorandum or similar document with respect to the offering of the Securities of such series to the extent that such description
was intended to be a substantially verbatim recitation of a provision in this Indenture, such Securities or any related security documents;
and |
| (17) | to add to, change or eliminate any provision of this Indenture as shall be necessary or desirable in accordance with any amendments
to the Trust Indenture Act. |
Section 902. Supplemental
Indentures With Consent of Holders.
With the consent of the Holders of not less than
a majority in aggregate principal amount of the Outstanding Securities of each series affected by such supplemental indenture (including
consents obtained in connection with a tender offer or exchange for Securities), by Act of said Holders delivered to the Company and the
Trustee, the Company and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders
of Securities of such series under this Indenture; provided, however, no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security of such series affected thereby:
| (1) | change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security; |
| (2) | reduce the principal amount of any Security or reduce the amount of the principal of an Original Issue Discount Security or any other
Security which would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502 or reduce
the rate of interest on any Security; |
| (3) | reduce any premium payable upon the redemption of or change the date on which any Security may or must be redeemed (it being understood
that a change to any notice requirement with respect to such date shall not be deemed to be a change of such date); |
| (4) | change the coin or currency in which the principal of or premium, if any, or interest on any Security is payable; |
| (5) | impair the right of any Holder to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or,
in the case of redemption, on or after the Redemption Date); |
| (6) | reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of
this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture; |
| (7) | modify any of the provisions of this Section 902, Section 512 or Section 1006, except to increase any such percentage
or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding
Security affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder
with respect to changes in the references to “the Trustee” and concomitant changes in this Section 902 and Section 1006,
or the deletion of this proviso, in accordance with the requirements of Section 611 and Section 901(6); or |
| (8) | if the Securities of any series are convertible into or for any other securities or property of the Company, make any change that
adversely affects in any material respect the right to convert any Security of such series (except as permitted by Section 901) or
decrease the conversion rate or increase the conversion price of any such Security of such series, unless such decrease or increase is
permitted by the terms of such Security. |
A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders
under this Section 902 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such
Act shall approve the substance thereof.
After a supplemental indenture under this Section 902
becomes effective, the Company shall send to the Trustee a notice briefly describing such supplemental indenture or a copy of such supplemental
indenture and the Trustee shall send such notice or supplemental indenture to Holders affected thereby. Any failure of the Company to
send such notice, or any defect therein, or any failure of the Company to send such supplemental indenture, shall not in any way impair
or affect the validity of any such supplemental indenture.
Section 903. Execution
of Supplemental Indentures.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article IX or the modifications thereby of the trusts created by this Indenture,
the Trustee shall be provided with, and, subject to Section 601, shall be fully protected in relying upon, an Officer’s Certificate
and an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture and that
all conditions precedent in this Indenture to the execution of such supplemental indenture, if any, have been complied with. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise.
Section 904. Effect
of Supplemental Indentures.
Upon the execution of any supplemental indenture
under this Article IX, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part
of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
Section 905. Conformity
with Trust Indenture Act.
Every supplemental indenture executed pursuant
to this Article IX shall conform to the requirements of the Trust Indenture Act.
Section 906. Reference
in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article IX may, and shall if required by the Trustee, bear a notation
in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities
of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared
and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
Article X
COVENANTS
Section 1001. Payment
of Principal, Premium, if any, and Interest.
The Company covenants and agrees for the benefit
of each series of Securities that it will duly and punctually pay the principal of and premium, if any, and interest on the Securities
of such series in accordance with the terms of the Securities and this Indenture. Principal and interest shall be considered paid on the
date due if, on or before 11:00 a.m. (New York City time) on such date, the Trustee or the Paying Agent (or, if the Company or any
of its Subsidiaries is the Paying Agent, the segregated account or separate trust fund maintained by the Company or such Subsidiary pursuant
to Section 1004) holds in accordance with this Indenture money sufficient to pay all principal and interest then due.
The Company shall pay interest on overdue principal
at the rate specified therefor in the Securities, and it shall pay interest on overdue installments of interest at the same rate to the
extent lawful as provided in Section 307.
Notwithstanding anything to the contrary contained
in this Indenture, the Company or the Paying Agent may, to the extent it is required to do so by law, deduct or withhold income or other
similar taxes imposed by the United States of America or other domestic or foreign taxing authorities from principal or interest payments
hereunder.
Section 1002. Corporate
Existence.
The Company covenants and agrees, for the benefit
of the Holders of Securities, that, subject to Article VIII, the Company will do or cause to be done all things necessary to preserve
and keep in full force and effect its existence as a corporation or other legal entity.
Section 1003. Maintenance
of Office or Agency.
The Company will maintain in each Place of Payment
for any series of Securities an office or agency where Securities of such series may be presented or surrendered for payment, where Securities
of such series may be surrendered for registration of transfer or exchange, where Securities may be surrendered for conversion, and where
notices and demands to or upon the Company in respect of the Securities of such series and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee; and such required office
or agency in the contiguous United States shall be at an office of the Trustee located at [__________]. The Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate
one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series
for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change
in the location of any such other office or agency.
With respect to any Global Security, and except
as otherwise may be specified for such Global Security as contemplated by Section 301, the Corporate Trust Office of the Trustee
shall be the Place of Payment where such Global Security may be presented or surrendered for payment or for registration of transfer or
exchange, or where successor Securities may be delivered in exchange therefor; and such Place of Payment with respect to a Global Security
in the contiguous United States shall be at an office of the Trustee located at [____________]; provided, however, that
any such payment, presentation, surrender or delivery effected pursuant to the Applicable Procedures of the Depositary for such Global
Security shall be deemed to have been effected at the Place of Payment for such Global Security in accordance with the provisions of this
Indenture.
Section 1004. Money
for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own
Paying Agent with respect to any series of Securities, it will, on or before each due date for the principal of or premium, if any, or
interest on any of the Securities of such series, segregate and hold in trust for the benefit of the Holders of such Securities a sum
sufficient to pay the principal and premium, if any, and interest so becoming due until such sums shall be paid to such Holders or otherwise
disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying
Agents for any series of Securities, it will, no later than 11:00 a.m. (New York City time) on each due date for the principal of
or premium, if any, or interest on any Securities of such series, deposit with a Paying Agent a sum sufficient to pay such amount, such
sum to be held in trust for the Holders of such Securities entitled to the same, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any
series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section 1004, that such Paying Agent shall hold in trust for the benefit of Holders
or the Trustee all money held by such Paying Agent for the payment of principal of or interest on the Securities and shall notify the
Trustee in writing of any default by the Company in making any such payment.
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 by Company Order direct any Paying Agent
to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts
as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to such money.
Subject to any applicable abandoned property law,
any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of or
premium, if any, or interest on any Security of any series and remaining unclaimed for two years after such principal, premium or interest
has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof,
shall thereupon cease.
Section 1005. Statement
by Officers as to Default.
The Company shall deliver to the Trustee within
120 days after the end of each fiscal year of the Company ending after the date hereof an Officer’s Certificate, stating whether
or not, to the best knowledge of such officer, the Company is in default in the performance and observance of any of the terms, provisions
and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and, if the Company
shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.
Section 1006. Waiver
of Certain Covenants.
Except as otherwise specified as contemplated by
Section 301 for Securities of such series, the Company may, with respect to the Securities of any series, omit in any particular
instance to comply with any term, provision or condition set forth in any covenant provided pursuant to Section 301(21), Section 901(1) or
Section 901(8) for the benefit of the Holders of such series, if before the time for such compliance the Holders of at least
a majority in aggregate principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or
affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force
and effect.
Article XI
REDEMPTION OF SECURITIES
Section 1101. Applicability
of Article.
Securities of any series which are redeemable before
their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 301
for such Securities) in accordance with this Article XI.
Section 1102. Election
to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities
shall be evidenced by a Board Resolution or an Officer’s Certificate or in another manner specified as contemplated by Section 301
for such Securities. In case of any redemption at the election of the Company of the Securities of any series (including any such redemption
affecting only a single Security), the Company shall, at least 30 days prior to the Redemption Date fixed by the Company (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities (a) prior
to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, or (b) pursuant
to an election of the Company which is subject to a condition specified in the terms of such Securities or elsewhere in this Indenture,
the Company shall furnish the Trustee with an Officer’s Certificate evidencing compliance with such restriction or condition.
Section 1103. Selection
by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are
to be redeemed (unless all the Securities of such series and of a specified tenor are to be redeemed or unless such redemption affects
only a single Security), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date,
from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and
appropriate and which complies with any securities exchange or other Applicable Procedures, or in the case of Global Securities, pursuant
to applicable Depositary procedures; provided that the unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. If less than all the Securities
of such series and of a specified tenor are to be redeemed (unless such redemption affects only a single Security), the particular Securities
to be redeemed shall be selected not more than 60 days prior to the Redemption Date, from the Outstanding Securities of such series and
specified tenor not previously called for redemption in accordance with the preceding sentence.
If any Security selected for partial redemption
is converted in part before termination of the conversion right with respect to the portion of the Security so selected, the converted
portion of such Security shall be deemed (so far as may be) to be the portion selected for redemption. Securities which have been converted
during a selection of securities to be redeemed shall be treated by the Trustee as Outstanding for the purpose of such selection.
The Trustee shall promptly notify the Company in
writing of the Securities selected for redemption as aforesaid and, in case of any Securities selected for partial redemption as aforesaid,
the principal amount thereof to be redeemed.
The provisions of the three preceding paragraphs
shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole or in
part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized
denomination (which shall not be less than the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed
or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed. If the
Company shall so direct, Securities registered in the name of the Company, any Affiliate or any Subsidiary thereof shall not be included
in the Securities selected for redemption.
Section 1104. Notice
of Redemption.
Notice of redemption shall be given by first-class
mail, postage prepaid, mailed or otherwise in accordance with the Applicable Procedures not less than 15 nor more than 60 days prior to
the Redemption Date (or within such period as otherwise specified as contemplated by Section 301 for Securities of a series), to
each Holder of Securities to be redeemed, at such Holder’s address appearing in the Security Register.
All notices of redemption shall identify the Securities
to be redeemed and shall state:
| (2) | the Redemption Price (or the method of calculating such price); |
| (3) | if less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the identification
(and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and,
if less than all the Outstanding Securities of any series consisting of a single Security are to be redeemed, the principal amount of
the particular Security to be redeemed; |
| (4) | that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date; |
| (5) | the place or places where each such Security is to be surrendered for payment of the Redemption Price; |
| (6) | for any Securities that by their terms may be converted, the terms of conversion, the date on which the right to convert the Security
to be redeemed will terminate and the place or places where such Securities may be surrendered for conversion; |
| (7) | that the redemption is for a sinking fund, if such is the case; and |
| (8) | if applicable, the CUSIP numbers of the Securities of such series; provided, however, that no representation will be
made as to the correctness or accuracy of the CUSIP number, or any similar number, if any, listed in such notice or printed on the Securities. |
Notice of redemption of Securities to be redeemed
at the election of the Company shall be given by the Company, or at the Company’s request (which notice may be rescinded or revoked
at any time prior to the time at which the Trustee shall have given such notice to the Holders), by the Trustee in the name and at the
expense of the Company. The notice, if sent in the manner herein provided, shall be conclusively presumed to have been given, whether
or not the Holder receives such notice. In any case, failure to give such notice by mail or otherwise in accordance with the Applicable
Procedures or any defect in the notice to the Holder of any Security designated for redemption as a whole or in part shall not affect
the validity of the proceedings for the redemption of any other Securities.
Section 1105. Deposit
of Redemption Price.
By no later than 11:00 a.m. (New York City
time) on any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1004) an amount of money sufficient to pay the Redemption Price
of, and (except if the Redemption Date shall be an Interest Payment Date or the Securities of the series provide otherwise) accrued interest
on, all the Securities which are to be redeemed on that date, other than Securities or portions of Securities called for redemption which
are owned by the Company or a Subsidiary and have been delivered by the Company or such Subsidiary to the Trustee for cancellation. All
money, if any, earned on funds held by the Paying Agent shall be remitted to the Company. In addition, the Paying Agent shall promptly
return to the Company any money deposited with the Paying Agent by the Company in excess of the amounts necessary to pay the Redemption
Price of, and accrued interest, if any, on, all Securities to be redeemed.
If any Security called for redemption is converted,
any money deposited with the Trustee or with any Paying Agent or so segregated and held in trust for the redemption of such Security shall
(subject to any right of the Holder of such Security or any Predecessor Security to receive interest as provided in the last paragraph
of Section 307 or in the terms of such Security) be paid to the Company upon Company Request or, if then held by the Company, shall
be discharged from such trust.
Section 1106. Securities
Payable on Redemption Date.
Notice of redemption having been given as aforesaid,
the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and
from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities
shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be
paid by the Company at the Redemption Price, together, if applicable, with accrued interest to the Redemption Date; provided, however,
that, unless otherwise specified as contemplated by Section 301, installments of interest whose Stated Maturity is on or prior to
the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the provisions of Section 307; provided further
that, unless otherwise specified as contemplated by Section 301, if the Redemption Date is after a Regular Record Date and on or
prior to the Interest Payment Date, the accrued and unpaid interest shall be payable to the Holder of the redeemed Securities registered
on the relevant Regular Record Date.
If any Security called for redemption shall not
be so paid upon surrender thereof for redemption, the principal and premium, if any, shall, until paid, bear interest from the Redemption
Date at the rate prescribed therefor in the Security.
Section 1107. Securities
Redeemed in Part.
Any Security which is to be redeemed only in part
shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s
attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as
requested by such Holder, in principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so
surrendered.
Article XII
SINKING FUNDS
Section 1201. Applicability
of Article.
The provisions of this Article XII shall be
applicable to any sinking fund for the retirement of Securities of any series except as otherwise specified as contemplated by Section 301
for such Securities.
The minimum amount of any sinking fund payment
provided for by the terms of any series of Securities 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 such Securities is herein referred to as an “optional sinking
fund payment.” If provided for by the terms of any series of Securities, the cash amount of any sinking fund payment may be subject
to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities of the series
as provided for by the terms of such Securities.
Section 1202. Satisfaction
of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities
of a series (other than any previously called for redemption) and (2) may apply as a credit Securities of a series which 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 any Securities of such series required to be made pursuant to the terms of such Securities as and to the extent provided
for by the terms of such Securities; provided that the Securities to be so credited have not been previously so credited. The Securities
to be so credited shall be received and credited for such purpose by the Trustee at the Redemption Price, as specified in the Securities
so to be redeemed, for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 1203. Redemption
of Securities for Sinking Fund.
Not less than 45 days (or such shorter period as
shall be satisfactory to the Trustee) prior to each sinking fund payment date for any Securities, the Company will deliver to the Trustee
an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for such Securities pursuant to the terms
of such Securities, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is
to be satisfied by delivering and crediting Securities pursuant to Section 1202 and will also deliver to the Trustee any Securities
to be so delivered. Not less than 30 days prior to each such sinking fund payment date, the Securities to be redeemed upon such sinking
fund payment date shall be selected in the manner specified in Section 1103 and the Company shall cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the manner provided in Section 1104. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Section 1106 and Section 1107.
Article XIII
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. Company’s
Option to Effect Defeasance or Covenant Defeasance.
Unless otherwise provided as contemplated by Section 301,
Section 1302 and Section 1303 shall apply to all Securities or each series of Securities, as the case may be, in either case,
denominated in U.S. dollars and bearing interest at a fixed rate, in accordance with any applicable requirements provided pursuant to
Section 301 and upon compliance with the conditions set forth below in this Article XIII; and the Company may elect, at its
option at any time, to have Section 1302 and Section 1303 applied to any Securities or any series of Securities, as the case
may be, pursuant to such Section 1302 or Section 1303, in accordance with any applicable requirements provided pursuant to Section 301
and upon compliance with the conditions set forth below in this Article XIII. Any such election to have or not to have Section 1302
and Section 1303 apply, as the case may be, shall be evidenced by a Board Resolution, Officer’s Certificate or in another manner
specified as contemplated by Section 301 for such Securities.
Section 1302. Defeasance
and Discharge.
Upon the Company’s exercise of its option,
if any, to have this Section 1302 applied to any Securities or any series of Securities, as the case may be, or if this Section 1302
shall otherwise apply to any Securities or any series of Securities, as the case may be, the Company shall be deemed to have been discharged
from its obligations with respect to such Securities as provided in this Section 1302 on and after the date the conditions set forth
in Section 1304 are satisfied (hereinafter called “Defeasance”). For this purpose, such Defeasance means that
the Company shall be deemed to have paid and discharged the entire indebtedness represented by such Securities and to have satisfied all
its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging the same), subject to the following which shall survive until otherwise
terminated or discharged hereunder: (1) the rights of Holders of such Securities to receive, solely from the trust fund described
in Section 1304 and as more fully set forth in such Section 1305, payments in respect of the principal of and premium, if any,
and interest on such Securities when payments are due, (2) the Company’s obligations with respect to such Securities under
Section 304, Section 305, Section 306, Section 1003 and Section 1004, (3) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and (4) this Article XIII. Subject to compliance with this Article XIII, the Company
may exercise its option, if any, to have this Section 1302 applied to the Securities of any series notwithstanding the prior exercise
of its option, if any, to have Section 1303 applied to such Securities.
Section 1303. Covenant
Defeasance.
Upon the Company’s exercise of its option,
if any, to have this Section 1303 applied to any Securities or any series of Securities, as the case may be, or if this Section 1303
shall otherwise apply to any Securities or any series of Securities, as the case may be, (1) the Company shall be released from its
obligations under any covenants provided pursuant to Section 301(21), Section 901(1) or Section 901(8) for the
benefit of the Holders of such Securities and the covenants set forth in Section 704, Section 1002, Section 1005 and Section 801,
and (2) the occurrence of any event specified in Section 501(3) and Section 501(6) shall be deemed not to be
or result in an Event of Default, in each case with respect to such Securities as provided in this Section 1303 on and after the
date the conditions set forth in Section 1304 are satisfied (hereinafter called “Covenant Defeasance”). For this
purpose, such Covenant Defeasance means that, with respect to such Securities, the Company may omit to comply with and shall have no liability
in respect of any term, condition or limitation set forth in any such specified Section, whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein
or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby.
Section 1304. Conditions
to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application
of Section 1302 or Section 1303 to any Securities or any series of Securities, as the case may be:
| (1) | The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee which satisfies the requirements
contemplated by Section 609 and agrees to comply with the provisions of this Article XIII applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefits of
the Holders of such Securities, (A) money in an amount, or (B) U.S. Government Obligations which through the scheduled payment
of principal and interest in respect thereof in accordance with their terms will provide money in an amount, or (C) a combination
thereof, in each case sufficient, in the opinion of an independent public accountant or financial advisor expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or any such other qualifying trustee)
to pay and discharge, the principal of and premium, if any, and interest on such Securities on the respective Stated Maturities, in accordance
with the terms of this Indenture and such Securities. As used herein, “U.S. Government Obligation” means (x) any
security which is (i) a direct obligation of the United States of America for the payment of which the full faith and credit of the
United States of America is pledged or (ii) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case (i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S.
Government Obligation which is specified in clause (x) above and held by such bank for the account of the holder of such depositary
receipt, or with respect to any specific payment of principal of or interest on any U.S. Government Obligation which is so specified and
held; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable
to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the
specific payment of principal or interest evidenced by such depositary receipt. |
| (2) | In the event of an election to have Section 1302 apply to any Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Company has received from, or there has been
published by, the U.S. Internal Revenue Service a ruling or (B) since the date of this Indenture, there has been a change in the
applicable Federal income tax law, in either case (A) or (B) to the effect that, and based thereon such opinion shall confirm
that, the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit, Defeasance
and discharge to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same
manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur. |
| (3) | In the event of an election to have Section 1303 apply to any Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Securities will not recognize
gain or loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Securities
and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit
and Covenant Defeasance were not to occur. |
| (4) | The Company shall have delivered to the Trustee an Officer’s Certificate to the effect that neither such Securities nor any
other Securities of the same series, if then listed on any securities exchange, will be delisted as a result of such deposit. |
| (5) | No Default or Event of Default with respect to such Securities or any other Securities shall have occurred and be continuing at the
time of such deposit or, insofar as Section 501(4) or Section 501(5) are concerned, at any time on or prior to the
90th day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day). |
| (6) | Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other material
agreement or instrument to which the Company is a party or by which it is bound. |
| (7) | The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been complied with (in each case, subject to the satisfaction of
the condition in clause (5)). |
Before or after a deposit, the Company may make
arrangements satisfactory to the Trustee for the redemption of Securities at a future date in accordance with Article XI.
Section 1305. Deposited
Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph
of Section 1004, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying
trustee (solely for purposes of this Section 1305 and Section 1306, the Trustee and any such other trustee are referred to collectively
as the “Trustee”) pursuant to Section 1304 in respect of any Securities shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any such
Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities, of
all sums due and to become due thereon in respect of principal and premium, if any, and interest, but money so held in trust need not
be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 1304
or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account
of the Holders of Outstanding Securities; provided that the Trustee shall be entitled to charge any such tax, fee or other charge
to such Holder’s account.
Anything in this Article XIII to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Obligations
held by it as provided in Section 1304 with respect to any Securities which are in excess of the amount thereof which would then
be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities.
Section 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to
apply any money in accordance with this Article XIII with respect to any Securities by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture
and such Securities from which the Company has been discharged or released pursuant to Section 1302 or Section 1303 shall be
revived and reinstated as though no deposit had occurred pursuant to this Article XIII with respect to such Securities, until such
time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 1305 with respect to such Securities
in accordance with this Article XIII; provided, however, that (a) if the Company makes any payment of principal
of or premium, if any, or interest on any such Security following such reinstatement of its obligations, the Company shall be subrogated
to the rights, if any, of the Holders of such Securities to receive such payment from the money so held in trust and (b) unless otherwise
required by any legal proceeding or any order or judgment of any court or governmental authority, the Trustee or Paying Agent shall return
all such money and U.S. Government Obligations to the Company promptly after receiving a written request therefor at any time, if such
reinstatement of the Company’s obligations has occurred and continues to be in effect.
Article XIV
REPAYMENT AT THE OPTION OF HOLDERS
Section 1401. Applicability
of Article.
Repayment of Securities of any series before their
Stated Maturity at the option of Holders thereof shall be made in accordance with the terms of such Securities and (except as otherwise
specified as contemplated by Section 301 for Securities of any series) in accordance with this Article XIV.
Section 1402. Repayment
of Securities.
Securities of any series subject to repayment in
whole or in part at the option of the Holders thereof will, unless otherwise provided in the terms of such Securities, be repaid at a
price equal to the principal amount thereof and premium, if any, thereon, together with interest thereon accrued to the Repayment Date
specified in or pursuant to the terms of such Securities. The Company covenants that on or before the Repayment Date it will deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1004)
an amount of money sufficient to pay the principal (or, if so provided by the terms of the Securities of any series, a percentage of the
principal) of, the premium, if any, and (except if the Repayment Date shall be an Interest Payment Date) accrued interest on, all the
Securities or portions thereof, as the case may be, to be repaid on such date.
Section 1403. Exercise
of Option.
Securities of any series subject to repayment at
the option of the Holders thereof will contain an “Option to Elect Repayment” form on the reverse of such Securities. To be
repaid at the option of the Holder, any Security so providing for such repayment, with the “Option to Elect Repayment” form
on the reverse of such Security duly completed by the Holder (or by the Holder’s attorney duly authorized in writing), must be received
by the Company at the Place of Payment therefor specified in the terms of such Security (or at such other place or places of which the
Company shall from time to time notify the Holders of such Securities) not earlier than 45 days nor later than 30 days prior to the Repayment
Date. If less than the entire principal amount of such Security is to be repaid in accordance with the terms of such Security, the principal
amount of such Security to be repaid, in increments of the minimum denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the portion of the principal amount of such Security surrendered
that is not to be repaid, must be specified. The principal amount of any Security providing for repayment at the option of the Holder
thereof may not be repaid in part if, following such repayment, the unpaid principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such Security to be repaid is a part. Except as otherwise may be provided
by the terms of any Security providing for repayment at the option of the Holder thereof, exercise of the repayment option by the Holder
shall be irrevocable unless waived by the Company.
Section 1404. When
Securities Presented for Repayment Become Due and Payable.
If Securities of any series providing for repayment
at the option of the Holders thereof shall have been surrendered as provided in this Article XIV and as provided by or pursuant to
the terms of such Securities, such Securities or the portions thereof, as the case may be, to be repaid shall become due and payable and
shall be paid by the Company on the Repayment Date therein specified, and on and after such Repayment Date (unless the Company shall default
in the payment of such Securities on such Repayment Date) such Securities shall, if the same were interest-bearing, cease to bear interest.
Upon surrender of any such Security for repayment in accordance with such provisions, the principal amount of such Security so to be repaid
shall be paid by the Company, together with accrued interest and/or premium, if any, to (but excluding) the Repayment Date; provided,
however, that, unless otherwise specified as contemplated by Section 301, installments of interest, if any, whose Stated Maturity
is on or prior to the Repayment Date shall be payable (but without interest thereon, unless the Company shall default in the payment thereof)
to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant
Regular Record Date according to their terms and the provisions of Section 307.
If the principal amount of any Security surrendered
for repayment shall not be so repaid upon surrender thereof, such principal amount (together with interest, if any, thereon accrued to
such Repayment Date) and any premium shall, until paid, bear interest from the Repayment Date at the rate of interest or yield to maturity
(in the case of Original Issue Discount Securities) set forth in such Security.
Section 1405. Securities
Repaid in Part.
Upon surrender of any Security which is to be repaid
in part only, the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Security, without service
charge and at the expense of the Company, a new Security or Securities of the same series, of any authorized denomination specified by
the Holder, in a principal amount equal to and in exchange for the portion of the principal of such Security so surrendered which is not
to be repaid.
* * *
This Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one
and the same instrument.
[Signature page follows]
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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Royal Gold, Inc. |
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By: |
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Name: |
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Title: |
[Signature Page to Indenture]
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[_____________],
as Trustee |
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By: |
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Name: |
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Title: |
[Signature
Page to Indenture]
Exhibit 5.1
 |
Hogan Lovells US LLP
1601 Wewatta Street
Suite 900
Denver, CO 80202
T +1 303 899 7300
F +1 303 899 7333
www.hoganlovells.com |
November 2, 2023
Board of Directors
Royal Gold, Inc.
1144 15th Street, Suite 2500
Denver, CO 80202
To the addressee referred to above:
We are acting as counsel to Royal Gold, Inc., a Delaware corporation
(the “Company”), in connection with its registration statement on Form S-3 (the “Registration Statement”),
filed with the Securities and Exchange Commission relating to the proposed public offering of one or more series of the following securities
of the Company: (i) debt securities (the “Debt Securities”), (ii) shares of preferred stock, $0.01 par value
per share (the “Preferred Shares”), (iii) shares of common stock, $0.01 par value per share (the “Common
Shares”), (iv) warrants to purchase Debt Securities (the “Debt Warrants”); (v) warrants to purchase
Preferred Shares (the “Preferred Stock Warrants”); (vi) warrants to purchase Common Shares (the “Common
Stock Warrants”); (vii) Preferred Shares represented by depositary receipts (the “Depositary Shares”);
(viii) purchase contracts to purchase or sell Debt Securities, Preferred Shares, Common Shares, Debt Warrants, Preferred Stock Warrants,
Common Stock Warrants or Depositary Shares (the “Purchase Contracts”); and (ix) units consisting of any of the
Company’s other Securities (as defined herein) (the “Units” and, together with the Debt Securities, Preferred
Shares, Common Shares, Debt Warrants, Preferred Stock Warrants, Common Stock Warrants, Depositary Shares and Purchase Contracts, the “Securities”),
all of which may be sold from time to time and on a delayed or continuous basis, as set forth in the prospectus which forms a part of
the Registration Statement, and as to be set forth in one or more supplements to the prospectus. This opinion letter is furnished to you
at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. § 229.601(b)(5), in
connection with the Registration Statement.
For purposes of this opinion letter, we have examined copies of such
agreements, instruments and documents as we have deemed an appropriate basis on which to render the opinions hereinafter expressed. In
our examination of the aforesaid documents, we have assumed the genuineness of all signatures, the legal capacity of all natural persons,
the accuracy and completeness of all documents submitted to us, the authenticity of all original documents, and the conformity to authentic
original documents of all documents submitted to us as copies (including pdfs). As to all matters of fact, we have relied on the representations
and statements of fact made in the documents so reviewed, and we have not independently established the facts so relied on. This opinion
letter is given, and all statements herein are made, in the context of the foregoing.
Hogan Lovells US LLP is a limited liability partnership registered in the state of Delaware. “Hogan Lovells” is an international
legal practice that includes Hogan Lovells US LLP and Hogan Lovells International LLP, with offices in: Alicante Amsterdam Baltimore Beijing
Birmingham Boston Brussels Colorado Springs Denver Dubai Dusseldorf Frankfurt Hamburg Hanoi Ho Chi Minh City Hong Kong Houston Johannesburg
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Jakarta Riyadh Shanghai FTZ Ulaanbaatar. Business Service Centers: Johannesburg Louisville. Legal Services Center: Berlin. For more information
see www.hoganlovells.com
| Royal Gold, Inc. | - 2 - | November 2, 2023 |
For purposes of this opinion letter, we have assumed that (i) the
issuance, sale, amount and terms of any Securities of the Company to be offered from time to time will have been duly authorized and established
by proper action of the board of directors of the Company or a duly authorized committee of such board (“Board Action”)
consistent with the procedures and terms described in the Registration Statement and in accordance with the Company’s charter and
bylaws and applicable Delaware corporate law, in a manner that does not violate any law, government or court-imposed order or restriction
or agreement or instrument then binding on the Company or otherwise impair the legal or binding nature of the obligations represented
by the applicable Securities; (ii) at the time of offer, issuance and sale of any Securities, the Registration Statement shall have
become effective under the Securities Act of 1933, as amended (the “Act”), and no stop order suspending its effectiveness
will have been issued and remain in effect; (iii) any Debt Securities will be issued pursuant to an indenture for Debt Securities
substantially in the form of such indenture filed as Exhibit 4.6 to the Registration Statement, with items shown in such exhibit
as subject to completion completed in a satisfactory manner; (iv) the indenture under which any Debt Securities are issued will be
qualified under the Trust Indenture Act of 1939, as amended; (v) any Debt Warrants will be issued under one or more debt warrant
agreements, each to be between the Company and a financial institution identified therein as a warrant agent; (vi) any Preferred
Stock Warrants will be issued under one or more equity warrant agreements, each to be between the Company and a financial institution
identified therein as a warrant agent; (vii) any Common Stock Warrants will be issued under one or more equity warrant agreements,
each to be between the Company and a financial institution identified therein as a warrant agent; (viii) prior to any issuance of
Preferred Shares or Depositary Shares, appropriate certificates of designation will be accepted for record by the Secretary of State of
the State of Delaware; (ix) any Depositary Shares will be issued under one or more deposit agreements by the financial institution
identified therein as a depositary, each deposit agreement to be between the Company and the financial institution identified therein
as a depositary; (x) any Purchase Contracts will be issued under one or more agreements, each to be between the Company and a financial
institution or other party identified therein; (xi) any Units will be issued under one or more unit agreements, each to be between
the Company and a financial institution or other party identified therein as unit agent; (xii) if being sold by the issuer thereof,
the Securities will be delivered against payment of valid consideration therefor and in accordance with the terms of the applicable Board
Action authorizing such sale and any applicable underwriting agreement or purchase agreement and as contemplated by the Registration Statement
and/or the applicable prospectus supplement; and (xiii) the Company will remain a Delaware corporation.
To the extent that the obligations of the Company with respect to the
Securities may be dependent upon such matters, we assume for purposes of this opinion that the other party under the indenture for any
Debt Securities, under the warrant agreement for any Debt Warrants, Preferred Stock Warrants or Common Stock Warrants, under the purchase
agreement for any Purchase Contracts, under the unit agreement for any Units and under the deposit agreement for any Depositary Shares,
namely, the trustee, the warrant agent, the applicable counterparty, the unit agent, or the depositary, respectively, is duly organized,
validly existing and in good standing under the laws of its jurisdiction of organization; that such other party is duly qualified to engage
in the activities contemplated by such indenture, warrant agreement, purchase agreement, unit agreement, or deposit agreement, as applicable;
that such indenture, warrant agreement, purchase agreement, unit agreement, or deposit agreement, as applicable, has been duly authorized,
executed and delivered by the other party and constitutes the legal, valid and binding obligation of the other party enforceable against
the other party in accordance with its terms; that such other party is in compliance with respect to performance of its obligations under
such indenture, warrant agreement, purchase agreement, unit agreement, or deposit agreement, as applicable, with all applicable laws,
rules and regulations; and that such other party has the requisite organizational and legal power and authority to perform its obligations
under such indenture, warrant agreement, purchase agreement, unit agreement, or deposit agreement, as applicable.
| Royal Gold, Inc. | - 3 - | November 2, 2023 |
This opinion letter is based as to matters of law solely on the applicable
provisions of the following, as currently in effect: (i) the Delaware General Corporation Law, as amended, and (ii) as to the
opinions given in paragraphs (a), (d), (e), (f), (g), (h) and (i), the laws of the State of New York (but not including any laws,
statutes, ordinances, administrative decisions, rules or regulations of any political subdivision below the state level). We express
no opinion herein as to any other statutes, rules, or regulations (and in particular, we express no opinion as to any effect that such
other statutes, rules or regulations may have on the opinions expressed herein).
Based upon, subject to and limited by the foregoing, we are of the
opinion that:
(a) The
Debt Securities (including any Debt Securities duly issued upon the exercise of Debt Warrants, Purchase Contracts or Units) upon due execution
and delivery of an indenture relating thereto on behalf of the Company and the trustee named therein, and upon authentication by such
trustee and due execution and delivery on behalf of the Company in accordance with the indenture and any supplemental indenture relating
thereto, will constitute valid and binding obligations of the Company.
(b) The
Preferred Shares (including any Preferred Shares represented by Depositary Shares or that are duly issued upon the exercise of Preferred
Stock Warrants, Purchase Contracts or Units and receipt by the Company of any additional consideration payable upon such exercise), upon
due execution and delivery on behalf of the Company of certificates therefor, including global certificates, or the entry of the issuance
thereof in the books and records of the Company, as the case may be, will be validly issued, fully paid and nonassessable.
(c) The
Common Shares (including any Common Shares duly issued upon the exchange or conversion of Debt Securities or Preferred Shares that are
exchangeable for or convertible into Common Shares or upon the exercise of Common Stock Warrants, Purchase Contracts or Units and receipt
by the Company of any additional consideration payable upon such conversion, exchange or exercise), upon due execution and delivery on
behalf of the Company of certificates therefor, including global certificates, or the entry of the issuance thereof in the books and records
of the Company, as the case may be, will be validly issued, fully paid and nonassessable.
(d) The
Debt Warrants, upon due execution and delivery of a debt warrant agreement relating thereto on behalf of the Company and the warrant agent
named therein and due authentication of the Debt Warrants by such warrant agent, and upon due execution and delivery of the Debt Warrants
on behalf of the Company, will constitute valid and binding obligations of the Company.
(e) The
Preferred Stock Warrants, upon due execution and delivery of an equity warrant agreement relating thereto on behalf of the Company and
the warrant agent named therein and due authentication of the Preferred Stock Warrants by such warrant agent, and upon due execution and
delivery of the Preferred Stock Warrants on behalf of the Company, will constitute valid and binding obligations of the Company.
| Royal Gold, Inc. | - 4 - | November 2, 2023 |
(f) The
Common Stock Warrants, upon due execution and delivery of an equity warrant agreement relating thereto on behalf of the Company and the
warrant agent named therein and due authentication of the Common Stock Warrants by such warrant agent, and upon due execution and delivery
of the Common Stock Warrants on behalf of the Company, will constitute valid and binding obligations of the Company.
(g) The
depositary receipts evidencing the Depositary Shares, upon due countersignature thereof and issuance against a deposit of duly authorized
and validly issued Preferred Shares in accordance with the deposit agreement relating thereto, will be validly issued and entitle the
holders thereof to the rights specified in such depositary receipts and deposit agreement.
(h) The
Purchase Contracts, upon due execution and delivery of an agreement relating thereto on behalf of the Company, and upon due execution
and delivery of one or more certificates bearing such terms on behalf of the Company, will constitute valid and binding obligations of
the Company.
(i) The
Units, upon due execution and delivery of a unit agreement relating thereto on behalf of the Company, and upon due execution and delivery
of such Units and the underlying securities that are components of such Units in accordance with any applicable unit agreement and the
indenture (in the case of underlying Debt Securities), certificate of designations (in the case of underlying Preferred Shares), deposit
agreement (in the case of underlying Depositary Shares), warrant agreement (in the case of underlying Warrants), or purchase contract
agreement (in the case of underlying Purchase Contracts), and assuming that the underlying securities that are components of such Units
have been duly and properly authorized for issuance and constitute valid and binding obligations enforceable against the issuer thereof
in accordance with their terms, such Units will constitute valid and binding obligations of the Company.
The opinions expressed in Paragraphs (a), (d), (e), (f), (g), (h) and
(i) above with respect to the valid and binding nature of obligations may be limited by bankruptcy, insolvency, reorganization, receivership,
moratorium or other laws affecting creditors’ rights and remedies (including, without limitation, the effect of statutory and other
law regarding fraudulent conveyances and fraudulent, preferential or voidable transfers) and by the exercise of judicial discretion and
the application of principles of equity, good faith, fair dealing, reasonableness, conscionability and materiality (regardless of whether
the Securities are considered in a proceeding in equity or at law), including, without limitation, principles limiting the availability
of specific performance and injunctive relief.
This opinion letter has been prepared for use in connection with the
Registration Statement. We assume no obligation to advise of any changes in the foregoing subsequent to the effective date of the Registration
Statement.
| Royal Gold, Inc. | - 5 - | November 2, 2023 |
We hereby consent to the filing of this opinion letter as Exhibit 5.1
to the Registration Statement and to the reference to this firm under the caption “Legal Matters” in the prospectus constituting
a part of the Registration Statement. In giving this consent, we do not thereby admit that we are an “expert” within the meaning
of the Act.
Very truly yours,
/s/ Hogan Lovells US LLP
HOGAN LOVELLS US LLP
EXHIBIT 23.1
Consent of Independent Registered Public Accounting
Firm
We consent to the reference to
our firm under the caption "Experts" in this Registration Statement (Form S-3) and related Prospectus of Royal Gold, Inc.
for the registration of debt securities, preferred stock, common stock, warrants, depositary shares, purchase contracts and units and
to the incorporation by reference therein of our reports dated February 16, 2023, with respect to the consolidated financial statements
of Royal Gold, Inc., and the effectiveness of internal control over financial reporting of Royal Gold, Inc., included in its
Annual Report (Form 10-K) for the year ended December 31, 2022, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Denver, Colorado
November 2,
2023
Exhibit 107
Calculation of Filing
Fee Tables
Form S-3ASR
(Form Type)
Royal Gold, Inc.
(Exact Name of Registrant
as Specified in Its Charter)
Table 1: Newly Registered
and Carry Forward Securities
| |
|
Security
Type |
|
Security
Class
Title |
|
Fee
Calculation
or Carry
Forward
Rule |
|
Amount
Registered |
|
Proposed
Maximum
Offering
Price per
Unit |
|
Maximum
Aggregate
Offering
Price |
|
Fee
Rate |
|
Amount of
Registration
Fee |
|
Carry
Forward
Form Type |
|
Carry
Forward
File
Number |
|
Carry
Forward
Initial
Effective
Date |
|
Filing Fee
Previously
Paid in
Connection
with
Unsold
Securities
to be
Carried
Forward |
| Newly Registered Securities |
| Fees to be Paid |
|
Debt |
|
Debt Securities |
|
Rule 456(b) and Rule 457(r) |
|
(1) |
|
(1) |
|
(1) |
|
(2) |
|
(2) |
|
- |
|
- |
|
- |
|
- |
| |
|
Equity |
|
Preferred Stock, par value $0.01 per share |
|
Rule 456(b) and Rule 457(r) |
|
(1) |
|
(1) |
|
(1) |
|
(2) |
|
(2) |
|
- |
|
- |
|
- |
|
- |
| |
|
Equity |
|
Common Stock, par value $0.01 per share |
|
Rule 456(b) and Rule 457(r) |
|
(1) |
|
(1) |
|
(1) |
|
(2) |
|
(2) |
|
- |
|
- |
|
- |
|
- |
| |
|
Other |
|
Warrants |
|
Rule 456(b) and Rule 457(r) |
|
(1) |
|
(1) |
|
(1) |
|
(2) |
|
(2) |
|
- |
|
- |
|
- |
|
- |
| |
|
Equity |
|
Depositary Shares |
|
Rule 456(b) and Rule 457(r) |
|
(1) |
|
(1) |
|
(1) |
|
(2) |
|
(2) |
|
- |
|
- |
|
- |
|
- |
| |
|
Other |
|
Purchase Contracts |
|
Rule 456(b) and Rule 457(r) |
|
(1) |
|
(1) |
|
(1) |
|
(2) |
|
(2) |
|
- |
|
- |
|
- |
|
- |
| |
|
Other |
|
Units |
|
Rule 456(b) and Rule 457(r) |
|
(1) |
|
(1) |
|
(1) |
|
(2) |
|
(2) |
|
- |
|
- |
|
- |
|
- |
| Fees Previously Paid |
|
- |
|
- |
|
- |
|
- |
|
- |
|
- |
|
- |
|
- |
|
- |
|
- |
|
- |
|
- |
| Carry Forward Securities |
| Carry Forward Securities |
|
- |
|
- |
|
- |
|
- |
|
- |
|
- |
|
- |
|
- |
|
- |
|
- |
|
- |
|
- |
| |
|
Total Offering Amounts |
|
|
|
N/A |
|
|
|
N/A |
|
|
|
|
|
|
|
|
| |
|
Total Fees Previously Paid |
|
|
|
|
|
|
|
N/A |
|
|
|
|
|
|
|
|
| |
|
Total Fee Offsets |
|
|
|
|
|
|
|
N/A |
|
|
|
|
|
|
|
|
| |
|
Net Fee Due |
|
|
|
|
|
|
|
N/A |
|
|
|
|
|
|
|
|
| (1) |
An indeterminate aggregate initial offering price or number of the securities of each identified class is being registered as may from time to time be issued at indeterminate prices. Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. |
| (2) |
In reliance on Rule 456(b) and Rule 457(r) under the Securities Act, the registrant hereby defers payment of the registration fee required in connection with this registration statement. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities. |
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