As filed with the Securities and Exchange Commission
on August 16, 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
Apollo Medical Holdings, Inc.
(Exact name of registrant as specified in its
charter)
| Delaware |
|
95-4472349 |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer
Identification Number) |
1668 S. Garfield Avenue, 2nd Floor
Alhambra, California 91801
(626) 282-0288
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Thomas Lam
Co-Chief Executive Officer and President
Apollo Medical Holdings, Inc.
1668 S. Garfield Avenue, 2nd Floor
Alhambra, California 91801
(626) 282-0288
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copy to:
Jurgita Ashley
Thompson Hine LLP
3900 Key Center
127 Public Square
Cleveland, Ohio 44114
(216) 566-5500
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨
If any of the securities being registered on this Form are to
be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans, check the following box. x
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of
the 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
APOLLO MEDICAL HOLDINGS, INC.
Common Stock
Preferred Stock
Debt Securities
Depositary Shares
Warrants
Purchase Contracts
Units
Subscription Rights
From time to time, we or selling securityholders may offer and sell
any combination of the securities described in this prospectus, either individually or in combination with other securities, in one or
more offerings. The securities we or selling securityholders may offer may be convertible into or exercisable or exchangeable for other
securities. The securities may be offered separately or together, in separate classes or series and in amounts, at prices and on terms
that will be determined at the time the securities are offered.
This prospectus provides you with a general description of the securities.
Each time we or selling securityholders offer and sell securities, we or such selling securityholders will provide a supplement to this
prospectus that contains specific information about the offering and, if applicable, the selling securityholders, as well as the amounts,
prices and terms of the securities. The supplement may also add, update or change information contained in this prospectus with respect
to that offering. You should carefully read this prospectus and the applicable prospectus supplement, together with the documents we
incorporate by reference, before you invest in any of our securities.
We or selling securityholders may offer and sell the securities described
in this prospectus and any prospectus supplement to or through one or more underwriters, dealers and agents, or directly to purchasers,
or through a combination of these methods. If any underwriters, dealers or agents 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. See the sections of this prospectus entitled “About
this Prospectus” and “Plan of Distribution” for more information. No securities may be sold without delivery of this
prospectus and the applicable prospectus supplement describing the method and terms of the offering of such securities. Unless the applicable
prospectus supplement provides otherwise, we will not receive any proceeds from the sale of securities by selling securityholders.
Investing
in our securities involves a high degree of risk. You should review carefully the risks and uncertainties referenced under the heading
“Risk Factors” beginning on page 6 of this
prospectus, as well as those contained in the applicable prospectus supplement and in any free writing prospectuses authorized for use
in connection with a specific offering, and in the other documents that are incorporated by reference into this prospectus or the applicable
prospectus supplement.
This prospectus may not be used to offer or sell any of our securities
unless accompanied by a prospectus supplement.
Our
common stock is listed on The Nasdaq Stock Market LLC under the trading symbol “AMEH.”
As of August 14, 2023, the last reported sale price of our common stock was $39.11 per share.
The applicable prospectus supplement will contain information, where applicable, as to other
listings, if any, on The Nasdaq Stock Market LLC or any securities market or other exchange
of the securities covered by the applicable prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation
to the contrary is a criminal offense.
The date of this prospectus is August 16,
2023
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed
with the U.S. Securities and Exchange Commission (the “SEC”) as a “well-known seasoned issuer” as defined in
Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”), using a “shelf” registration
process. Under this process, we or selling securityholders may offer and sell any combination of the securities described in this prospectus
from time to time in one or more offerings. There is no limit on the aggregate amount of the securities that we or selling securityholders
may offer pursuant to the registration statement of which this prospectus is a part. Each time that we or selling securityholders offer
and sell securities, we or such selling securityholders will provide a prospectus supplement to this prospectus that contains specific
information about the securities being offered and sold and the specific terms of that offering. To the extent permitted by law, we may
also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings.
Such prospectus supplement or free writing prospectus may also add, update or change information contained in this prospectus with respect
to that offering. If there is any inconsistency between the information in this prospectus and the applicable prospectus supplement or
free writing prospectus, you should rely on the prospectus supplement or free writing prospectus, as applicable. Before purchasing any
securities, you should carefully read both this prospectus and the applicable prospectus supplement (and any applicable free writing
prospectuses), together with the additional information described under the heading “Where You Can Find More Information; Incorporation
by Reference.”
Neither we, nor any selling securityholders, have authorized anyone
to provide you with any information or to make any representations other than those contained in this prospectus, any applicable prospectus
supplement or any free writing prospectuses prepared by or on behalf of us or to which we have referred you. We and any selling securityholders
take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We
and any selling securityholders will not make an offer to sell these securities in any jurisdiction where the offer or sale is not permitted.
You should assume that the information appearing in this prospectus and the applicable prospectus supplement to this prospectus is accurate
only as of the date on its respective cover, that the information appearing in any applicable free writing prospectus is accurate only
as of the date of that free writing prospectus, and that any information incorporated by reference is accurate only as of the date of
the document incorporated by reference or, in each case, any earlier date specified for such information, unless we indicate otherwise.
Our business, financial condition, results of operations and prospects may have changed since those dates.
To the extent there is a conflict between the information contained
in this prospectus, on the one hand, and the information contained in any document incorporated by reference filed with the SEC before
the date of this prospectus, on the other hand, you should rely on the information in this prospectus. If any statement in a document
incorporated by reference is inconsistent with a statement in another document incorporated by reference having a later date, the statement
in the document having the later date modifies or supersedes the earlier statement.
This prospectus incorporates by reference, and any prospectus supplement
or free writing prospectus may contain and incorporate by reference, market data and industry statistics and forecasts that are based
on independent industry publications and other publicly available information. Although we believe these sources are reliable, we do
not guarantee the accuracy or completeness of this information and we have not independently verified this information. In addition,
the market and industry data and forecasts that may be included or incorporated by reference in this prospectus, any prospectus supplement
or any applicable free writing prospectus may involve estimates, assumptions and other risks and uncertainties and are subject to change
based on various factors, including those discussed under the heading “Risk Factors” contained in this prospectus, the applicable
prospectus supplement and any applicable free writing prospectus, and under similar headings in other documents that are incorporated
by reference into this prospectus. Accordingly, investors should not place undue reliance on this information.
This prospectus, any applicable prospectus supplement and the information
incorporated herein or therein by reference include trademarks, service marks and trade names owned by us or other companies. Solely
for convenience, we may refer to our trademarks included or incorporated by reference in this prospectus, any applicable prospectus supplement
or any free writing prospectus without the TM or ® symbols, but any such references are not intended to indicate that we will not
assert, to the fullest extent permitted under applicable law, our rights to our trademarks or other intellectual property. All trademarks,
service marks and trade names included or incorporated by reference in this prospectus, any applicable prospectus supplement or any related
free writing prospectus are the property of their respective owners.
This prospectus may not be used to consummate a sale of securities
unless it is accompanied by a prospectus supplement.
Unless otherwise stated or the context otherwise requires, references
in this prospectus to “Apollo” or the “Company,” and “we,” “our,” and “us”
refer to Apollo Medical Holdings, Inc. and its consolidated subsidiaries and affiliated entities, as appropriate, including its
consolidated variable interest entities (“VIEs”). When we refer to “you,” we mean the potential holders of the
applicable series of securities.
WHERE YOU CAN FIND
MORE INFORMATION; INCORPORATION BY REFERENCE
Available Information
We file annual, quarterly and current reports, proxy statements and
other information with the SEC. The SEC maintains a website that contains reports, proxy and information statements and other information
about issuers, such as us, who file electronically with the SEC. The address of that website is www.sec.gov.
We also maintain an internet website at www.apollomed.net. Through
our website, we make available, free of charge, the following documents as soon as reasonably practicable after they are electronically
filed with, or furnished to, the SEC: our quarterly reports on Form 10-Q, annual reports on Form 10-K, current reports on Form 8-K,
and all amendments to those reports. Information contained on, or that may be accessed through, our website is provided for textual reference
only and does not constitute part of, and is not incorporated by reference into, this prospectus or the registration statement of which
it forms a part.
This prospectus and any prospectus supplement are part of a registration
statement that we filed with the SEC and do not contain all of the information in the registration statement. The full registration statement
may be obtained from the SEC through the SEC’s website at the address provided above. You may also request a copy of the registration
statement from us, as provided below. Forms of the indenture and other documents establishing the terms of any offered securities are
or may be filed as exhibits to the registration statement or documents incorporated by reference in the registration statement. Statements
in this prospectus or any prospectus supplement about these documents are summaries, and each statement is qualified in all respects
by reference to the document to which it refers. You should refer to the actual documents for a more complete description of the relevant
matters.
Incorporation by Reference
The SEC’s rules allow us to “incorporate by reference”
information into this prospectus, which 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 deemed to be part of this prospectus, and subsequent information
that we file with the SEC will automatically update and supersede that information. Any statement contained in this prospectus or a previously
filed document incorporated by reference will be deemed to be modified or superseded for purposes of this prospectus to the extent that
a statement contained in this prospectus or a subsequently filed document incorporated by reference modifies or replaces that statement.
This prospectus and any accompanying prospectus
supplement incorporate by reference the documents set forth below that have previously been filed with the SEC:
| ● | our
Quarterly
Report on Form 10-Q for the quarter ended March 31, 2023, filed with the SEC on May 10,
2023, as amended by Amendment No. 1 on Form 10-Q/A, filed with the SEC on August 9, 2023,
and our Quarterly Report on Form 10-Q for the quarter ended June 30, 2023, filed with the
SEC on August 9, 2023; |
| ● | our
Current Reports on Form 8-K filed with the SEC on January
11, 2023, February
8, 2023, February
23, 2023, March
13, 2023, May
8, 2023, June
7, 2023, June
16, 2023, July
12, 2023, July
31, 2023, August
7, 2023 (first filing), and August
7, 2023 (second filing) (as amended by the Form 8-K/A filed August 9, 2023) (excluding
any information furnished in such reports under Item 2.02, Item 7.01 or Item 9.01);
and |
| ● | the
description of our common stock set forth in Exhibit 4.10
of our Annual Report on Form 10-K for the year ended December 31, 2019, together with any
amendment or report filed with the SEC for the purpose of updating such description. |
All reports and other documents we subsequently file pursuant to Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), after the date of this prospectus
and prior to the termination of the offering of securities hereby (excluding any information furnished to, rather than filed with, the
SEC), will also be incorporated by reference into this prospectus and deemed to be part of this prospectus from the date of the filing
of such reports and documents.
You may obtain any of the documents incorporated by reference in this
prospectus from the SEC through the SEC’s website at the address provided above. You also may request a copy of any document incorporated
by reference in this prospectus (excluding any exhibits to those documents, unless the exhibit is specifically incorporated by reference
in this document), at no cost, by writing or telephoning us at the following address and phone number:
Apollo Medical Holdings, Inc.
Attn: Chief Financial Officer
1668 S. Garfield Avenue, 2nd Floor
Alhambra, California 91801
(626) 282-0288
THE COMPANY
Our Company
Apollo is a leading physician-centric, technology-powered, risk-bearing
healthcare company. Leveraging its proprietary end-to-end technology solutions, Apollo operates an integrated healthcare delivery platform
that enables providers to successfully participate in value-based care arrangements, thus empowering them to deliver high-quality care
to patients in a cost-effective manner. We, together with our affiliated physician groups and consolidated entities, provide coordinated
outcomes-based medical care primarily serving patients in California, the majority of whom are covered by private or public insurance
provided through Medicare, Medicaid, and health maintenance organizations (HMOs), with a small portion of our revenue coming from non-insured
patients. We provide care coordination services to each major constituent of the healthcare delivery system, including patients, families,
primary care physicians, specialists, acute care hospitals, alternative sites of inpatient care, physician groups and health plans. Our
physician network consists of primary care physicians, specialist physicians, physician and specialist extenders, and hospitalists. We
operate primarily through Apollo and the following subsidiaries: Network Medical Management, Inc. (“NMM”), Apollo Medical
Management, Inc. and APA ACO, Inc., and their consolidated entities, including consolidated VIEs.
Led by a management team with several decades of experience, we have
built a company and culture that is focused on physicians providing high-quality medical care, population health management, and care
coordination for patients. As a result, we believe we are well-positioned to take advantage of the shift in the U.S. healthcare industry
toward providing value-based and results-oriented healthcare with a focus on patient satisfaction, high-quality care, and cost efficiency.
We implement and operate different innovative healthcare models, primarily
including the following integrated operations:
| ● | Independent
practice associations (“IPAs”), which contract with physicians and provide care
to Medicare, Medicaid, and commercial and dual-eligible patients on a risk- and value-based
fee basis; |
| ● | Management
service organizations, which provide management, administrative and other support services
to our affiliated physician groups such as IPAs; |
| ● | APA
ACO, Inc., which participates in the ACO Realizing Equity, Access, and Community Health (ACO
REACH) Model sponsored by the Centers for Medicare & Medicaid Services, and focuses on
providing high-quality and cost-efficient care to Medicare fee-for-service patients; |
| ● | Outpatient
clinics providing primary care, specialty care, urgent care, as well as an ambulatory surgery
center and specialty clinics, including cardiac care and diagnostic testing services; and |
| ● | Hospitalists,
which include our contracted physicians who focus on the delivery of comprehensive medical
care to hospitalized patients. |
Corporate Information
Apollo’s common stock is listed on Nasdaq and trades under the
symbol “AMEH.”
Apollo was incorporated in the State of Delaware on November 1,
1985. Our principal place of business is located at 1668 S. Garfield Avenue, 2nd Floor, Alhambra, California 91801. Our telephone number
is (626) 282-0288. Our corporate website address is www.apollomed.net. Information contained on or accessible through our website is
not a part of this prospectus, and the inclusion of our website address in this prospectus is an inactive textual reference only.
RISK FACTORS
Investment in any securities offered pursuant to this prospectus and
the applicable prospectus supplement involves risks. Before deciding whether to invest in our securities, you should carefully read and
consider the risk factors 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, any amendments to such filings, and all other information contained in 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 and any applicable free writing prospectus. The risks and uncertainties we have described are
not the only ones facing our Company. Additional risks and uncertainties not presently known to us or that we currently believe are not
material may also affect our business operations. Past financial performance may not be a reliable indicator of future performance, and
historical trends should not be used to anticipate results or trends in future periods. If any of these risks actually occurs, our business,
financial condition, results of operations or cash flows could be seriously harmed. This could cause the trading price of our securities
to decline, resulting in a loss of all or part of your investment in the offered securities. The discussion of risks includes or refers
to forward-looking statements. You should read the explanation of the qualifications and limitations on such forward-looking statements
contained in or incorporated by reference into this prospectus and in any applicable prospectus supplement or free writing prospectus.
CAUTIONARY NOTE
REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference herein
and any prospectus supplement delivered with this prospectus contain forward-looking statements within the meaning of Section 27A
of the Securities Act and Section 21E of the Exchange Act, about us and our industry that involve substantial risks and uncertainties.
All statements other than statements of historical facts contained in this prospectus and the documents incorporated by reference herein,
including statements regarding general economic and market conditions, our future results of operations and financial condition, business
strategy, and plans and objectives of management for future operations, are forward-looking statements. In some cases, forward-looking
statements may be identified by words such as “anticipate,” “believe,” “budgeted,” “can,”
“contemplate,” “continue,” “could,” “design,” “envision,” “estimate,”
“expect,” “intend,” “may,” “might,” “plan,” “potential,” “predict,”
“project,” “seek,” “should,” “target,” “think,” “will,” “would,”
or the negative of these terms or other similar terms or expressions, although not all forward-looking statements contain these identifying
words.
The forward-looking statements in this prospectus and the
documents incorporated by reference herein are only predictions. These forward-looking statements are not historical facts, but
rather are based on our current expectations, assumptions and projections about future events. Although we believe that the
expectations, assumptions and projections on which these forward-looking statements are based are reasonable, they nonetheless could
prove to be inaccurate, and as a result, the forward-looking statements based on those expectations, assumptions, and projections
also could be inaccurate. Forward-looking statements are not guarantees of future performance. These forward-looking statements are
subject to a number of known and unknown risks, uncertainties, assumptions and other important factors, some of which are beyond our
control, that may cause our actual results, performance or achievements to be materially different from any future results,
performance or achievements expressed or implied by the forward-looking statements, including risks described in the section titled
“Risk Factors” incorporated by reference into this prospectus from our most recent Annual Report on Form 10-K and
any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, any amendments to such filings and all other
information contained in or incorporated by reference into this prospectus, as updated by our subsequent filings under the Exchange
Act and in our other filings with the SEC.
Other sections in this prospectus and the documents incorporated by
reference herein include additional factors that could harm our business and financial performance. New risk factors emerge from time
to time, and it is not possible for our management to predict all risk factors, nor can we assess the impact of all factors on our business
or the extent to which any factor, or combination of factors, may cause actual results to differ from those contained in, or implied
by, any forward-looking statements. Given these uncertainties, current or prospective investors are cautioned not to place undue reliance
on any such forward-looking statements.
You should not rely upon forward-looking statements as predictions
of future events. We cannot assure you that the events and circumstances reflected in the forward-looking statements will be achieved
or occur. Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee future
results, levels of activity, performance or achievements. These forward-looking statements speak only as of the date made. Except as
required by law, we undertake no obligation to update publicly any forward-looking statements for any reason after the date of this prospectus
or to conform these statements to actual results or to changes in our expectations. You should read this prospectus and the documents
incorporated by reference herein and filed as exhibits to the registration statement of which this prospectus is a part with the understanding
that our actual future results, levels of activity, performance and achievements may be materially different from what we expect. We
qualify all of our forward-looking statements by these cautionary statements.
USE OF PROCEEDS
We intend to use the net proceeds from the sale of the securities
as set forth in the applicable prospectus supplement. Unless the applicable prospectus supplement provides otherwise, we will not receive
any of the proceeds from the sale of our securities by selling securityholders.
DESCRIPTION OF
CAPITAL STOCK
The following description of our capital stock is not complete
and may not contain all the information you should consider before investing in our capital stock. This description is summarized from,
and qualified in its entirety by reference to, our Restated Certificate of Incorporation (as amended, the “Certificate of Incorporation”)
and Restated By-Laws (as amended, the “Bylaws”), which have been publicly filed with the SEC. See “Where You Can Find
More Information; Incorporation by Reference.” The summary below is also qualified by reference to the provisions of applicable
Delaware law.
Authorized Capital
We have 100,000,000 shares of common stock, par value $0.001 per share,
and 5,000,000 shares of preferred stock, par value $0.001 per share, authorized for issuance, of which 1,111,111 preferred shares are
designated as Series A convertible preferred stock (“Series A preferred stock”) and 555,555 preferred shares are
designated as Series B convertible preferred stock (“Series B preferred stock”).
Common Stock
Voting
Holders of our common stock are entitled to one vote for each share
for the election of directors and on all other matters submitted to a stockholder vote. Holders of our common stock do not have cumulative
voting rights.
Dividends
Subject to the rights of preferred stockholders, if any, holders of
our common stock are entitled to receive such dividends, if any, as may be declared from time to time by our board of directors, in its
discretion, from legally available funds.
Liquidation
In the event of a liquidation, dissolution or winding up, the holders
of common stock will be entitled to share ratably in the net assets legally available for distribution to stockholders after the payment
of all of our known debts and other liabilities and the satisfaction of any liquidation preference granted to the holders of any then-outstanding
shares of preferred stock.
Rights and Preferences
All outstanding shares of common stock are duly authorized, fully
paid and non-assessable. Holders of common stock have no preemptive, conversion, subscription or other rights, and there are no redemption
or sinking fund provisions applicable to the common stock. The rights, preferences, and privileges of the holders of common stock are
subject to, and may be adversely affected by, the rights of the holders of shares of any series of preferred stock that the Company has
designated or may designate in the future.
Stock Exchange Listing
The common stock is listed on The Nasdaq Stock Market LLC (“Nasdaq”)
under the trading symbol “AMEH.”
Registration Rights
Certain of the Company’s outstanding shares of common stock
have registration rights.
Transfer Agent
The transfer agent for our common stock is Pacific Stock Transfer,
a Securitize company.
Preferred Stock
Under the terms of the Certificate of Incorporation, our board of
directors is authorized to provide for the issuance of up to 5,000,000 shares of preferred stock in one or more series, to establish
the number of shares to be included in each series, and to fix the designation, powers, including voting rights, if any, preferences,
and relative, participating, optional and other rights and the qualifications, limitations and restrictions thereof. The issuance of
preferred stock could adversely affect the voting power of holders of common stock and the likelihood that such holders will receive
dividend payments and payments upon liquidation. In addition, the issuance of preferred stock could have the effect of delaying, deferring
or preventing a change of control of the Company or other corporate action.
As of the date of this prospectus, we have 1,666,666 shares of preferred
stock designated and issued, consisting of 1,111,111 shares of Series A preferred stock and 555,555 shares of Series B preferred
stock, all of which are held by NMM, our wholly-owned subsidiary. As NMM is a wholly-owned subsidiary of the Company, pursuant to the
Delaware General Corporation Law, the shares held by NMM are not entitled to vote or to be counted for quorum purposes with respect to
the Company’s stockholder actions. Holders of our shares of Series A preferred stock and Series B preferred stock are
entitled to receive dividends, out of legally available assets, on parity with the holders of our shares of common stock. The Series A
preferred stock and Series B preferred stock have an initial liquidation preference in the amount of $9.00 per share, plus any declared
and unpaid dividends, and are convertible into common stock, at the option of the holder thereof, at any time after issuance, at an initial
conversion rate of one-for-one, in each case, subject to adjustment in the event of stock dividends, stock splits and certain other similar
transactions.
We will fix the designations, voting powers, preferences and rights
of the preferred stock of each series we issue under this prospectus, as well as the qualifications, limitations or restrictions thereof,
in the certificate of designation relating to that series. We will incorporate by reference as an exhibit to the registration statement
of which this prospectus is a part, or as an exhibit to one or more reports that we file with the SEC, the form of any certificate of
designation that describes the terms of the series of preferred stock we are offering. We will describe in the applicable prospectus
supplement the terms of the series of preferred stock being offered, including, to the extent applicable:
| ● | the
title and stated value; |
| ● | the
number of shares we are offering; |
| ● | the
liquidation preference per share; |
| ● | the
dividend rate, period and payment date and method of calculation for dividends; |
| ● | whether
dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends
will accumulate; |
| ● | the
procedures for any auction and remarketing, if applicable; |
| ● | the
provisions for a sinking fund, if applicable; |
| ● | the
provisions for redemption or repurchase, if applicable, and any restrictions on our ability
to exercise those redemption and repurchase rights; |
| ● | any
listing of the preferred stock on any securities exchange or market; |
| ● | whether
the preferred stock will be convertible into our common stock, and, if applicable, the conversion
price, or how it will be calculated, and the conversion period; |
| ● | whether
the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange
price, or how it will be calculated, and the exchange period; |
| ● | voting
rights of the preferred stock; |
| ● | preemptive
rights, if any; |
| ● | restrictions
on transfer, sale or other assignment; |
| ● | a
discussion of any material or special U.S. federal income tax considerations applicable to
the preferred stock; |
| ● | the
relative ranking and preferences of the preferred stock as to dividend rights and rights
if we liquidate, dissolve or wind up our affairs; |
| ● | any
limitations on the issuance of any class or series of preferred stock ranking senior to or
on a parity with the series of preferred stock as to dividend rights and rights if we liquidate,
dissolve or wind up our affairs; |
| ● | whether
we have elected to offer depositary shares as described under “Description of Depositary
Shares”; and |
| ● | any
other specific terms, preferences, rights or limitations of, or restrictions on, the preferred
stock. |
The transfer agent for each series of preferred stock will be described
in the applicable prospectus supplement.
As described under “Description of Depositary Shares,”
we may, at our option, with respect to any series of preferred stock, elect to offer fractional interests in shares of preferred stock,
and provide for the issuance of depositary receipts representing depositary shares, each of which will represent a fractional interest
in a share of the series of preferred stock. The fractional interest will be specified in the prospectus supplement relating to a particular
series of preferred stock.
Anti-Takeover Provisions
The following provisions of our Certificate of Incorporation and our
Bylaws could have the effect of delaying or discouraging another party from acquiring control of us and could encourage persons seeking
to acquire control of us to first negotiate with our board of directors:
| ● | our
Bylaws require holders of not less than one-tenth of all shares entitled to vote at a meeting
to call a special meeting of stockholders; |
| ● | our
Certificate of Incorporation and Bylaws provide that our board of directors will establish
the authorized number of directors from time to time; |
| ● | our
Certificate of Incorporation does not permit cumulative voting in the election of directors;
and |
| ● | our
Certificate of Incorporation permits our board of directors to determine the rights, privileges
and preferences of any new series of preferred stock, some of which could impede the ability
of a person to acquire control of our company. |
The Company is subject to Section 203 of the Delaware General
Corporation Law (“Section 203”), which generally prohibits a public Delaware corporation from engaging in a “business
combination” with an “interested stockholder” for a period of three years after the date of the transaction in which
the person became an interested stockholder unless:
| ● | prior
to the date of the transaction, 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
completion 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 outstanding (but not the outstanding voting stock owned by the interested stockholder)
those shares owned by (i) 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 after such date, the business combination is approved by the board of directors and authorized
at an annual or special meeting of stockholders, and not by written consent, by the affirmative
vote of at least two-thirds of the outstanding voting stock that is not owned by the interested
stockholder. |
In general, Section 203 defines “business combination”
to include the following:
| ● | any
merger or consolidation involving the corporation and the interested stockholder; |
| ● | any
sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction
or a series of transactions), except proportionately as a stockholder of such corporation,
to or with the interested stockholder, of assets of the corporation, which assets have an
aggregate market value equal to 10% or more of either the aggregate market value of all the
assets of the corporation determined on a consolidated basis or the aggregate market value
of all the outstanding stock of the corporation; |
| ● | subject
to certain exceptions, any transaction that results in the issuance or transfer by the corporation
of any stock of the corporation to the interested stockholder; |
| ● | subject
to certain exceptions, any transaction involving the corporation that has the effect, directly
or indirectly, of increasing the interested stockholder’s proportionate share of the
stock of any class or series, or securities convertible into the stock of any class or series,
of the corporation; and |
| ● | any
receipt by the interested stockholder of the benefit, directly or indirectly (except proportionately
as a stockholder of such corporation), 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 an entity or person that, together with the person’s affiliates and associates, beneficially owns, or within three years prior
to the time of determination of interested stockholder status did own, 15% or more of the outstanding voting stock of the corporation.
DESCRIPTION
OF DEBT SECURITIES
We may issue debt securities from time to time, in one or more series,
as either senior or subordinated debt or as senior or subordinated convertible debt. We may issue debt securities either separately,
or together with, or upon the conversion or exercise of or in exchange for, other securities described in this prospectus. While the
terms we have summarized below will apply generally to any debt securities that we may offer under this prospectus, we will describe
the particular terms of any debt securities that we may offer in more detail in the applicable prospectus supplement. The terms of any
debt securities offered under a prospectus supplement may differ from the terms described below. Unless the context requires otherwise,
whenever we refer to the indenture, we also are referring to any supplemental indentures that specify the terms of a particular series
of debt securities.
We will issue the debt securities under the indenture that we will
enter into with the trustee named in the indenture. The indenture will be qualified under the Trust Indenture Act of 1939, as amended
(the “Trust Indenture Act”). We have filed the form of indenture as an exhibit to the registration statement of which this
prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of the debt securities being offered
will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated by reference from
reports that we file with the SEC.
The following summary of material provisions of the debt securities
and the indenture is subject to, and qualified in its entirety by reference to, all of the provisions of the indenture applicable to
a particular series of debt securities. We urge you to read the applicable prospectus supplements and any related free writing prospectuses
related to the debt securities that we may offer under this prospectus, as well as the complete indenture that contains the terms of
the debt securities.
General
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 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.
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 be issued with “original issue discount” (“OID”)
for U.S. federal income tax purposes because of interest payment and other characteristics or terms of the debt securities. Material
U.S. federal income tax considerations applicable to debt securities issued with OID will be described in more detail in any applicable
prospectus supplement.
We will describe in the applicable prospectus supplement the terms
of the series of debt securities being offered, including:
| ● | the
title of the series of debt securities; |
| ● | any
limit upon the aggregate principal amount that may be issued; |
| ● | the
maturity date or dates; |
| ● | the
form of the debt securities of the series; |
| ● | the
applicability of any guarantees; |
| ● | whether
or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
| ● | whether
the debt securities rank as senior debt, senior subordinated debt, subordinated debt or any
combination thereof, and the terms of any subordination; |
| ● | if
the price (expressed as a percentage of the aggregate principal amount thereof) at which
such debt securities will be issued is a price other than the principal amount thereof, the
portion of the principal amount thereof payable upon declaration of acceleration of the maturity
thereof, or if applicable, the portion of the principal amount of such debt securities that
is convertible into another security or the method by which any such portion shall be determined; |
| ● | the
interest rate or rates, which may be fixed or variable, or the method for determining the
rate and the date interest will begin to accrue, the dates interest will be payable and the
regular record dates for interest payment dates or the method for determining such dates; |
| ● | our
right, if any, to defer payment of interest and the maximum length of any such deferral period; |
| ● | if
applicable, the date or dates after which, or the period or periods during which, and the
price or prices at which, we may, at our option, redeem the series of debt securities pursuant
to any optional or provisional redemption provisions and the terms of those redemption provisions; |
| ● | the
date or dates, if any, on which, and the price or prices at which we are obligated, pursuant
to any mandatory sinking fund or analogous fund provisions or otherwise, to redeem, or at
the holder’s option to purchase, the series of debt securities and the currency or
currency unit in which the debt securities are payable; |
| ● | the
denominations in which we will issue the series of debt securities, if other than denominations
of $1,000 and any integral multiple thereof; |
| ● | any
and all terms, if applicable, relating to any auction or remarketing of the debt securities
of that series and any security for our obligations with respect to such debt securities
and any other terms which may be advisable in connection with the marketing of debt securities
of that series; |
| ● | whether
the debt securities of the series shall be issued in whole or in part in the form of a global
security or securities; the terms and conditions, if any, upon which such global security
or securities may be exchanged in whole or in part for other individual securities; and the
depositary for such global security or securities; |
| ● | if
applicable, the provisions relating to conversion or exchange of any debt securities of the
series and the terms and conditions upon which such debt securities will be so convertible
or exchangeable, including the conversion or exchange price, as applicable, or how it will
be calculated and may be adjusted, any mandatory or optional (at our option or the holders’
option) conversion or exchange features, the applicable conversion or exchange period and
the manner of settlement for any conversion or exchange; |
| ● | if
other than the full principal amount thereof, the portion of the principal amount of debt
securities of the series which shall be payable upon declaration of acceleration of the maturity
thereof; |
| ● | additions
to or changes in the covenants applicable to the particular debt securities being issued,
including, among others, the consolidation, merger or sale covenant; |
| ● | additions
to or changes in the events of default with respect to the securities and any change in the
right of the trustee or the holders to declare the principal, premium, if any, and interest,
if any, with respect to such securities to be due and payable; |
| ● | additions
to or changes in or deletions of the provisions relating to covenant defeasance and legal
defeasance; |
| ● | additions
to or changes in the provisions relating to satisfaction and discharge of the indenture; |
| ● | additions
to or changes in the provisions relating to the modification of the indenture both with and
without the consent of holders of debt securities issued under the indenture; |
| ● | the
currency of payment of debt securities if other than U.S. dollars and the manner of determining
the equivalent amount in U.S. dollars; |
| ● | whether
interest will be payable in cash or additional debt securities at our or the holders’
option and the terms and conditions upon which the election may be made; |
| ● | the
terms and conditions, if any, upon which we will pay amounts in addition to the stated interest,
premium, if any, and principal amounts of the debt securities of the series to any holder
that is not a “United States person” for federal tax purposes; |
| ● | any
restrictions on transfer, sale or assignment of the debt securities of the series; and |
| ● | any
other specific terms, preferences, rights or limitations of, or restrictions on, the debt
securities, any other additions or changes in the provisions of the indenture, and any terms
that may be required by us or advisable under applicable laws or regulations. |
Conversion or Exchange Rights
We will set forth in the applicable prospectus supplement the terms
on which a series of debt securities may be convertible into or exchangeable for our common stock or our other securities. We will include
provisions as to settlement upon conversion or exchange and whether conversion or exchange is mandatory, at the option of the holder
or at our option. We may include provisions pursuant to which the number of shares of our common stock or our other securities that the
holders of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise in the prospectus supplement applicable
to a particular series of debt securities, the indenture will not contain any covenant that restricts our ability to merge or consolidate,
or sell, convey, transfer or otherwise dispose of our assets as an entirety or substantially as an entirety. However, any successor to
or acquirer of such assets (other than a subsidiary of ours) must assume all of our obligations under the indenture or the debt securities,
as appropriate.
Events of Default under the Indenture
Unless we provide otherwise in the prospectus supplement applicable
to a particular series of debt securities, the following are events of default under the indenture with respect to any series of debt
securities that we may issue:
| ● | if
we fail to pay any installment of interest on any series of debt securities, as and when
the same shall become due and payable, and such default continues for a period of 90 days;
provided, however, that a valid extension of an interest payment period by us in accordance
with the terms of any indenture supplemental thereto shall not constitute a default in the
payment of interest for this purpose; |
| ● | if
we fail to pay the principal of, or premium, if any, on any series of debt securities as
and when the same shall become due and payable, whether at maturity, upon redemption, by
declaration or otherwise, or in any payment required by any sinking or analogous fund established
with respect to such series; provided, however, that a valid extension of the maturity of
such debt securities in accordance with the terms of any indenture supplemental thereto shall
not constitute a default in the payment of principal or premium, if any; |
| ● | if
we fail to observe or perform any other covenant or agreement contained in the debt securities
or the indenture, other than a covenant specifically relating to another series of debt securities,
and our failure continues for 90 days after we receive written notice of such failure, requiring
the same to be remedied and stating that such is a notice of default thereunder, from the
trustee or holders of at least 25% in aggregate principal amount of the outstanding debt
securities of the applicable series; and |
| ● | if
specified events of bankruptcy, insolvency or reorganization occur. |
If an event of default with respect to debt securities of any series
occurs and is continuing, other than an event of default specified in the last bullet point above, the trustee or the holders of at least
25% in aggregate principal amount of the outstanding debt securities of that series, by notice to us in writing, and to the trustee if
notice is given by such holders, may declare the unpaid principal of, premium, if any, and accrued interest, if any, due and payable
immediately. If an event of default specified in the last bullet point above occurs with respect to us, the principal amount of and accrued
interest, if any, of each issue of debt securities then outstanding shall be due and payable without any notice or other action on the
part of the trustee or any holder.
The holders of a majority in principal amount of the outstanding debt
securities of an affected series may waive any default or event of default with respect to the series and its consequences, except defaults
or events of default regarding payment of principal, premium, if any, or interest, unless we have cured the default or event of default
in accordance with the indenture. Any waiver shall cure the default or event of default.
Subject to the terms of the indenture, if an event of default under
an indenture shall occur and be continuing, the trustee will be under no obligation to exercise any of its rights or powers under such
indenture at the request or direction of any of the holders of the applicable series of debt securities, unless such holders have offered
the trustee reasonable indemnity. The holders of a majority in principal amount of the outstanding debt securities of any series will
have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising
any trust or power conferred on the trustee, with respect to the debt securities of that series, provided that:
| ● | the
direction so given by the holder is not in conflict with any law or the applicable indenture;
and |
| ● | subject
to its duties under the Trust Indenture Act, the trustee need not take any action that might
involve it in personal liability or might be unduly prejudicial to the holders not involved
in the proceeding. |
A holder of the debt securities of any series will have the right
to institute a proceeding under the indenture or to appoint a receiver or trustee, or to seek other remedies only if:
| ● | the
holder has given written notice to the trustee of a continuing event of default with respect
to that series; |
| ● | the
holders of at least 25% in aggregate principal amount of the outstanding debt securities
of that series have made written request; |
| ● | such
holders have offered to the trustee indemnity satisfactory to it against the costs, expenses
and liabilities to be incurred by the trustee in compliance with the request; and |
| ● | the
trustee does not institute the proceeding, and does not receive from the holders of a majority
in aggregate principal amount of the outstanding debt securities of that series other conflicting
directions within 90 days after the notice, request and offer. |
These limitations do not apply to a suit instituted by a holder of
debt securities if we default in the payment of the principal, premium, if any, or interest on the debt securities.
We will periodically file statements with the trustee regarding our
compliance with specified covenants in the indenture.
Modification of Indenture; Waiver
We and the trustee may change an indenture without the consent of
any holders with respect to specific matters:
| ● | to
cure any ambiguity, defect or inconsistency in the indenture or in the debt securities of
any series; |
| ● | to
comply with the provisions described above under “Description of Debt Securities—Consolidation,
Merger or Sale”; |
| ● | to
provide for uncertificated debt securities in addition to or in place of certificated debt
securities; |
| ● | to
add to our covenants, restrictions, conditions or provisions such new covenants, restrictions,
conditions or provisions for the benefit of the holders of all or any series of debt securities,
to make the occurrence, or the occurrence and the continuance, of a default in any such additional
covenants, restrictions, conditions or provisions an event of default or to surrender any
right or power conferred upon us in the indenture; |
| ● | to
add to, delete from or revise the conditions, limitations, and restrictions on the authorized
amount, terms, or purposes of issue, authentication and delivery of debt securities, as set
forth in the indenture; |
| ● | to
make any change that does not adversely affect the rights of any holder of debt securities
of any series in any material respect; |
| ● | to
provide for the issuance of and establish the form and terms and conditions of the debt securities
of any series as provided above under “Description of Debt Securities—General”
to establish the form of any certifications required to be furnished pursuant to the terms
of the indenture or any series of debt securities, or to add to the rights of the holders
of any series of debt securities; |
| ● | to
evidence and provide for the acceptance of appointment under any indenture by a successor
trustee; or |
| ● | to
comply with any requirements of the SEC in connection with the qualification of any indenture
under the Trust Indenture Act. |
In addition, under the indenture, the rights of holders of a series
of debt securities may be changed by us and the trustee with the written consent of the holders of at least a majority in aggregate principal
amount of the outstanding debt securities of each series that is affected. However, unless we provide otherwise in the prospectus supplement
applicable to a particular series of debt securities, we and the trustee may make the following changes only with the consent of each
holder of any outstanding debt securities affected:
| ● | extending
the fixed maturity of any debt securities of any series; |
| ● | reducing
the principal amount, reducing the rate of or extending the time of payment of interest,
or reducing any premium payable upon the redemption of any series of any debt securities;
or |
| ● | reducing
the percentage of debt securities, the holders of which are required to consent to any amendment,
supplement, modification or waiver. |
Discharge
Each indenture provides that we can elect to be discharged from our
obligations with respect to one or more series of debt securities, except for specified obligations, including obligations to:
| ● | register
the transfer or exchange of debt securities of the series; |
| ● | replace
stolen, lost or mutilated debt securities of the series; |
| ● | pay
principal of and premium and interest on any debt securities of the series; |
| ● | maintain
paying agencies; |
| ● | hold
monies for payment in trust; |
| ● | recover
excess money held by the trustee; |
| ● | compensate
and indemnify the trustee; and |
| ● | appoint
any successor trustee. |
In order to exercise our rights to be discharged, we must deposit
with the trustee money or government obligations sufficient to pay all the principal of, any premium, if any, and interest on the debt
securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will issue the debt securities of each series only in fully registered
form without coupons and, unless we provide otherwise in the applicable prospectus supplement, in denominations of $1,000 and any integral
multiple thereof. The indenture provides that we may issue debt securities of a series in temporary or permanent global form and as book-entry
securities that will be deposited with, or on behalf of, The Depository Trust Company (“DTC”), or another depositary named
by us and identified in the applicable prospectus supplement with respect to that series. To the extent the debt securities of a series
are issued in global form and as book-entry, a description of terms relating to any book-entry securities will be set forth in the applicable
prospectus supplement.
At the option of the holder, subject to the terms of the indenture
and the limitations applicable to global securities described in the applicable prospectus supplement, the holder of the debt securities
of any series can exchange the debt securities for other debt securities of the same series, in any authorized denomination and of like
tenor and aggregate principal amount.
Subject to the terms of the indenture and the limitations applicable
to global securities set forth in the applicable prospectus supplement, holders of the debt securities may present the debt securities
for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed thereon duly executed if so required
by us or the security registrar, at the office of the security registrar or at the office of any transfer agent designated by us for
this purpose. Unless otherwise provided in the debt securities that the holder presents for transfer or exchange, we will impose no service
charge for any registration of transfer or exchange, but we may require payment of any taxes or other governmental charges.
We will name in the applicable prospectus supplement the security
registrar, and any transfer agent in addition to the security registrar, that we initially designate for any debt securities. We may
at any time designate additional transfer agents or rescind the designation of any transfer agent or approve a change in the office through
which any transfer agent acts, except that we will be required to maintain a transfer agent in each place of payment for the debt securities
of each series.
If we elect to redeem the debt securities of any series, we will not
be required to:
| ● | issue,
register the transfer of, or exchange any debt securities of that series during a period
beginning at the opening of business 15 days before the day of mailing of a notice of redemption
of any debt securities that may be selected for redemption and ending at the close of business
on the day of the mailing; or |
| ● | register
the transfer of or exchange any debt securities so selected for redemption, in whole or in
part, except the unredeemed portion of any debt securities we are redeeming in part. |
Information Concerning the Trustee
The trustee, other than during the occurrence and continuance of an
event of default under an indenture, undertakes to perform only those duties as are specifically set forth in the applicable indenture.
Upon an event of default under an indenture, the trustee must use the same degree of care as a prudent person would exercise or use in
the conduct of his or her own affairs. Subject to this provision, the trustee is under no obligation to exercise any of the powers given
it by the indenture at the request of any holder of debt securities unless it is offered reasonable security and indemnity against the
costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate in the applicable prospectus supplement,
we will make payment of the interest on any debt securities on any interest payment date to the person in whose name the debt securities,
or one or more predecessor securities, are registered at the close of business on the regular record date for the interest.
We will pay principal of and any premium and interest on the debt
securities of a particular series at the office of the paying agents designated by us, except that unless we otherwise indicate in the
applicable prospectus supplement, we will make interest payments by check that we will mail to the holder or by wire transfer to certain
holders. Unless we otherwise indicate in the applicable prospectus supplement, we will designate the corporate trust office of the trustee
as our sole paying agent for payments with respect to debt securities of each series. We will name in the applicable prospectus supplement
any other paying agents that we initially designate for the debt securities of a particular series. We will maintain a paying agent in
each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or the trustee for the payment
of the principal of or any premium or interest on any debt securities that remains unclaimed at the end of two years after such principal,
premium or interest has become due and payable will be repaid to us, and the holder of the debt security thereafter may look only to
us for payment thereof.
Governing Law
The indenture and the debt securities will be governed by and construed
in accordance with the internal laws of the State of New York, except to the extent that the Trust Indenture Act is applicable.
DESCRIPTION
OF DEPOSITARY SHARES
We may, at our option, elect to offer fractional shares of preferred
stock, which we call depositary shares, rather than full shares of preferred stock. If we do, we will issue to the public receipts, called
depositary receipts, for depositary shares, each of which will represent a fraction, to be described in the applicable prospectus supplement,
of a share of a particular series of preferred stock. Unless otherwise provided in the prospectus supplement, each owner of a depositary
share will be entitled, in proportion to the applicable fractional interest in a share of preferred stock represented by the depositary
share, to all the rights and preferences of the preferred stock represented by the depositary share. Those rights include dividend, voting,
redemption, conversion and liquidation rights.
The shares of preferred stock underlying the depositary shares will
be deposited with a bank or trust company selected by us to act as depositary under a deposit agreement among us, the depositary and
the holders of the depositary receipts. The depositary will be the transfer agent, registrar and dividend disbursing agent for the depositary
shares. The depositary shares will be evidenced by depositary receipts issued pursuant to the deposit agreement. Holders of depositary
receipts agree to be bound by the deposit agreement, which requires holders to take certain actions such as filing proof of residence
with and paying certain charges to the depositary.
The summary of terms of the depositary shares contained in this prospectus
is not a complete description of the terms of the depositary shares. The terms of any depositary shares offered under a prospectus supplement
may differ from the terms described below. We will file as exhibits to the registration statement of which this prospectus is a part,
or will incorporate by reference from reports that we file with the SEC, the form of the deposit agreement, our certificate of incorporation
and the certificate of designation for the applicable series of preferred stock, that contain the terms of the particular depositary
shares and series of preferred stock we are offering, and any supplemental agreements, before the issuance of such securities. We urge
you to read the applicable prospectus supplement and any related free writing prospectus, as well as the complete deposit agreement that
contains the terms of the depositary shares.
Dividends and Other Distributions
The depositary will distribute all cash dividends or other cash distributions,
if any, received in respect of the preferred stock underlying the depositary shares to the record holders of depositary shares in proportion
to the numbers of depositary shares owned by those holders on the relevant record date. The relevant record date for depositary shares
will be the same date as the record date for the underlying preferred stock.
If there is a distribution other than in cash, the depositary will
distribute property (including securities) received by it to the record holders of depositary shares, unless the depositary determines
that it is not feasible to make the distribution. If this occurs, the depositary may, with our approval, adopt another method for the
distribution, including selling the property and distributing the net proceeds from the sale to the holders.
Liquidation Preference
If a series of preferred stock underlying the depositary shares has
a liquidation preference, in the event of the voluntary or involuntary liquidation, dissolution or winding up of us, holders of depositary
shares will be entitled to receive the fraction of the liquidation preference accorded each share of the applicable series of preferred
stock, as set forth in the applicable prospectus supplement.
Withdrawal of Stock
Unless the related depositary shares have been previously called for
redemption, upon surrender of the depositary receipts at the office of the depositary, the holder of the depositary shares will be entitled
to delivery, at the office of the depositary or upon his or her order, of the number of whole shares of the preferred stock and any money
or other property represented by the depositary shares. If the depositary receipts delivered by the holder evidence a number of depositary
shares in excess of the number of depositary shares representing the number of whole shares of preferred stock to be withdrawn, the depositary
will deliver to the holder at the same time a new depositary receipt evidencing the excess number of depositary shares. In no event will
the depositary deliver fractional shares of preferred stock upon surrender of depositary receipts. Holders of preferred stock thus withdrawn
may not thereafter deposit those shares under the deposit agreement or receive depositary receipts evidencing depositary shares therefor.
Redemption of Depositary Shares
Whenever we redeem shares of preferred stock held by the depositary,
the depositary will redeem as of the same redemption date the number of depositary shares representing shares of the preferred stock
so redeemed, so long as we have paid in full to the depositary the redemption price of the preferred stock to be redeemed plus an amount
equal to any accumulated and unpaid dividends on the preferred stock to the date fixed for redemption. The redemption price per depositary
share will be equal to the redemption price and any other amounts per share payable on the preferred stock multiplied by the fraction
of a share of preferred stock represented by one depositary share. If less than all the depositary shares are to be redeemed, the depositary
shares to be redeemed will be selected by lot or pro rata or by any other equitable method as may be determined by the depositary.
After the date fixed for redemption, depositary shares called for
redemption will no longer be deemed to be outstanding and all rights of the holders of depositary shares will cease, except the right
to receive the monies payable upon redemption and any money or other property to which the holders of the depositary shares were entitled
upon redemption upon surrender to the depositary of the depositary receipts evidencing the depositary shares.
Voting the Preferred Stock
Upon receipt of notice of any meeting at which the holders of the
series of preferred stock represented by the applicable series of depositary shares are entitled to vote, the depositary will mail the
information contained in the notice of meeting to the record holders of the depositary receipts relating to that preferred stock. The
record date for the depositary receipts relating to the preferred stock will be the same date as the record date for the preferred stock.
Each record holder of the depositary shares on the record date will be entitled to instruct the depositary as to the exercise of the
voting rights pertaining to the number of shares of preferred stock represented by that holder’s depositary shares. The depositary
will endeavor, insofar as practicable, to vote the number of shares of preferred stock represented by the depositary shares in accordance
with those instructions, and we will agree to take all action that may be deemed necessary by the depositary to enable the depositary
to do so. The depositary will not vote any shares of preferred stock except to the extent it receives specific instructions from the
holders of depositary shares representing that number of shares of preferred stock.
Charges of Depositary
We will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. We will pay the charges due to the depositary in connection with the
initial deposit of the preferred stock and any redemption of the preferred stock. Holders of depositary receipts will pay transfer, income
and other taxes and governmental charges and such other charges (including those in connection with the receipt and distribution of dividends,
the sale or exercise of rights, the withdrawal of the preferred stock and the transferring, splitting or grouping of depositary receipts)
as are expressly provided in the deposit agreement to be for their accounts. If these charges have not been paid by the holders of depositary
receipts, the depositary may refuse to transfer depositary shares, withhold dividends and distributions and sell the depositary shares
evidenced by the depositary receipt.
Amendment and Termination of the Deposit Agreement
The form of depositary receipt evidencing the depositary shares and
any provision of the deposit agreement may be amended by agreement between us and the depositary. However, any amendment that materially
and adversely alters the rights of the holders of depositary shares, other than fee changes, will not be effective unless the amendment
has been approved by the holders of a majority of the outstanding depositary shares affected by the amendment. The deposit agreement
may be terminated by the depositary or us only if:
| ● | all
outstanding depositary shares have been redeemed; or |
| ● | there
has been a final distribution of the preferred stock in connection with our dissolution and
such distribution has been made to all the holders of depositary shares. |
Resignation and Removal of Depositary
The depositary may resign at any time by delivering to us notice of
its election to do so, and we may remove the depositary at any time. Any resignation or removal of the depositary will take effect upon
our appointment of a successor depositary and its acceptance of such appointment. The successor depositary must be appointed within 60
days after delivery of the notice of resignation or removal and must be a bank or trust company having its principal office in the United
States and having the requisite combined capital and surplus as set forth in the applicable agreement.
Notices
The depositary will forward to holders of depositary receipts all
notices, reports and other communications, including proxy solicitation materials received from us, that are delivered to the depositary
and that we are required to furnish to the holders of the preferred stock. In addition, the depositary will make available for inspection
by holders of depositary receipts at the principal office of the depositary, and at such other places as it may from time to time deem
advisable, any reports and communications we deliver to the depositary as the holder of preferred stock.
Limitation of Liability
Neither we nor the depositary will be liable if either we or it is
prevented or delayed by law or any circumstance beyond its control in performing its obligations. Our obligations and those of the depositary
will be limited to performance in good faith of our and their duties thereunder. We and the depositary will not be obligated to prosecute
or defend any legal proceeding in respect of any depositary shares or preferred stock unless satisfactory indemnity is furnished. We
and the depositary may rely upon written advice of counsel or accountants, on information provided by persons presenting preferred stock
for deposit, holders of depositary receipts or other persons believed to be competent to give such information and on documents believed
to be genuine and to have been signed or presented by the proper party or parties.
DESCRIPTION
OF WARRANTS
We may issue warrants for the purchase of shares of our common stock,
preferred stock or depositary shares, or debt securities, which may be in one or more series. We may issue warrants independently or
together with other securities, and the warrants may be attached to or separate from any offered securities. Each series of warrants
will be issued under a separate warrant agreement to be entered into between us and the investors or a warrant agent. The following summary
of material provisions of the warrants and warrant agreements is subject to, and qualified in its entirety by reference to, all the provisions
of the warrant agreement and warrant certificate applicable to a particular series of warrants. The terms of any warrants offered under
a prospectus supplement may differ from the terms described below. We will file as exhibits to the registration statement of which this
prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of warrant and/or the warrant
agreement and warrant certificate, as applicable, that contain the terms of the particular series of warrants we are offering, and any
supplemental agreements, before the issuance of such warrants. We urge you to read the applicable prospectus supplement and any related
free writing prospectus, as well as the complete form of warrant and/or the warrant agreement and warrant certificate, as applicable,
and any supplemental agreements, that contain the terms of the warrants.
The particular terms of any issue of warrants will be described in
the prospectus supplement relating to the issue. Those terms may include:
| ● | the
number of shares of common stock, preferred stock or depositary shares purchasable upon the
exercise of warrants to purchase such shares and the price at which such number of shares
may be purchased upon such exercise; |
| ● | the
designation, stated value and terms (including, without limitation, liquidation, dividend,
conversion and voting rights) of the series of preferred stock or depositary shares purchasable
upon exercise of warrants to purchase preferred stock or depositary shares, as applicable; |
| ● | the
principal amount of debt securities that may be purchased upon exercise of a debt warrant
and the exercise price for the warrants, which may be payable in cash, securities or other
property; |
| ● | the
date, if any, on and after which the warrants and the related debt securities, depositary
shares, preferred stock or common stock will be separately transferable; |
| ● | the
terms of any rights to redeem or call the warrants; |
| ● | the
date on which the right to exercise the warrants will commence and the date on which the
right will expire; |
| ● | the
proposed listing, if any, of the warrants or any securities purchasable upon exercise of
the warrants on any securities exchange; |
| ● | United
States federal income tax consequences applicable to the warrants; and |
| ● | any
additional terms of the warrants, including terms, procedures, and limitations relating to
the exchange, exercise and settlement of the warrants. |
Holders of equity warrants will not be entitled to:
| ● | vote,
consent or receive dividends; |
| ● | receive
notice as stockholders with respect to any meeting of stockholders for the election of our
directors or any other matter; or |
| ● | exercise
any rights as stockholders of the Company. |
Each warrant will entitle its holder to purchase the principal amount
of debt securities or the number of shares of common stock, preferred stock or depositary shares at the exercise price set forth in,
or calculable as set forth in, the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement,
holders of the warrants may exercise the warrants at any time up to the specified time on the expiration date that we set forth in the
applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void.
A holder of warrant certificates may exchange them for new warrant
certificates of different denominations, present them for registration of transfer and exercise them at the corporate trust office of
the warrant agent or any other office indicated in the applicable prospectus supplement. Until any warrants to purchase debt securities
are exercised, the holder of the warrants will not have any rights of holders of the debt securities that can be purchased upon exercise,
including any rights to receive payments of principal, premium or interest on the underlying debt securities or to enforce covenants
in the applicable indenture. Until any warrants to purchase common stock, preferred stock or depositary shares are exercised, the holders
of the warrants will not have any rights of holders of the underlying shares, including any rights to receive dividends or payments upon
any liquidation, dissolution or winding up on the common stock, preferred stock or depositary shares, if any.
DESCRIPTION
OF PURCHASE CONTRACTS
We may issue purchase contracts for the purchase or sale of debt or
equity securities issued by us. Each purchase contract will entitle the holder thereof to purchase or sell, and obligate us to sell or
purchase, on specified dates, such securities at a specified purchase price, which may be based on a formula, all as set forth in the
applicable prospectus supplement. Any purchase contracts we issue will be physically settled by delivery of such securities. The applicable
prospectus supplement will also specify the methods by which the holders may purchase or sell such securities and any acceleration, cancellation
or termination provisions or other provisions relating to the settlement of a purchase contract. We will file as exhibits to the registration
statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the forms of any
purchase contracts that we may offer under this prospectus, before the issuance of such purchase contracts. We urge you to read the applicable
prospectus supplement and any related free writing prospectus, as well as the complete form of purchase contract, that contains the terms
of the purchase contracts.
DESCRIPTION
OF UNITS
We may issue units consisting of any combination of the other types
of securities offered under this prospectus in one or more series. We may evidence each series of units by unit certificates that we
will issue under a separate agreement. We may enter into unit agreements with a unit agent. Each unit agent will be a bank or trust company
that we select. We will indicate the name and address of the unit agent in the applicable prospectus supplement relating to a particular
series of units.
The following description, together with the additional information
included in any applicable prospectus supplement, summarizes the general features of the units that we may offer under this prospectus.
The terms of any units offered under a prospectus supplement may differ from the terms described below. You should read any prospectus
supplement and any free writing prospectus that we may authorize to be provided to you related to the series of units being offered,
as well as the complete unit agreements that contain the terms of the units. Specific unit agreements will contain additional important
terms and provisions, and we will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate
by reference from reports that we file with the SEC, the form of each unit agreement relating to units offered under this prospectus,
before the issuance of such units.
If we offer any units, certain terms of that series of units will
be described in the applicable prospectus supplement, including, without limitation, the following, as applicable:
| ● | the
title of the series of units; |
| ● | identification
and description of the separate constituent securities comprising the units; |
| ● | the
price or prices at which the units will be issued; |
| ● | the
date, if any, on and after which the constituent securities comprising the units will be
separately transferable; |
| ● | a
discussion of certain U.S. federal income tax considerations applicable to the units; and |
| ● | any
other terms of the units and their constituent securities. |
DESCRIPTION
OF SUBSCRIPTION RIGHTS
We may issue subscription rights to purchase our common stock, preferred
stock, debt securities, depositary shares, warrants or units consisting of some or all of these securities. These subscription rights
may be offered independently or together with any other security offered hereby and may or may not be transferable by the stockholder
receiving the subscription rights in such offering. In connection with any offering of subscription rights, we may enter into a standby
arrangement with one or more underwriters or other purchasers pursuant to which the underwriters or other purchasers may be required
to purchase any securities remaining unsubscribed for after such offering.
The prospectus supplement relating to any subscription rights we offer
will include specific terms relating to the offering, including the following, to the extent applicable:
| ● | the
price, if any, for the subscription rights; |
| ● | the
exercise price payable for our common stock, preferred stock, debt securities, depositary
shares, warrants or units consisting of some or all of these securities upon the exercise
of the subscription rights; |
| ● | the
number of subscription rights to be issued to each stockholder; |
| ● | the
number and terms of our common stock, preferred stock, debt securities, depositary shares,
warrants or units consisting of some or all of these securities which may be purchased per
each subscription right; |
| ● | the
extent to which the subscription rights are transferable; |
| ● | any
other terms of the subscription rights, including the terms, procedures and limitations relating
to the exchange and exercise of the subscription rights; |
| ● | the
date on which the right to exercise the subscription rights shall commence, and the date
on which the subscription rights shall expire; |
| ● | the
extent to which the subscription rights may include an over-subscription privilege with respect
to unsubscribed securities or an over-allotment privilege to the extent the securities are
fully subscribed; and |
| ● | if
applicable, the material terms of any standby underwriting or purchase arrangement which
we may enter into in connection with the offering of subscription rights. |
The descriptions of the subscription rights in this prospectus and
in any prospectus supplement are summaries of the material provisions of the applicable subscription right agreements. These descriptions
do not restate those subscription right agreements in their entirety and may not contain all the information that you may find useful.
We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from reports
that we file with the SEC, the forms of the subscription rights agreement and the subscription certificate that we may offer under this
prospectus, before the issuance of such rights. We urge you to read the applicable subscription right agreements because they, and not
the summaries, define your rights as holders of the subscription rights.
GLOBAL SECURITIES
Book-Entry, Delivery and Form
Unless we indicate differently in any applicable prospectus supplement
or free writing prospectus, the securities initially will be issued in book-entry form and represented by one or more global notes or
global securities, or, collectively, global securities. The global securities will be deposited with or on behalf of DTC and registered
in the name of Cede & Co., the nominee of DTC. Unless and until it is exchanged for individual certificates evidencing securities
under the limited circumstances described below, a global security may not be transferred except as a whole by the depositary to its
nominee or by the nominee to the depositary, or by the depositary or its nominee to a successor depositary or to a nominee of the successor
depositary.
DTC has advised us that it is:
| ● | a
limited-purpose trust company organized under the New York Banking Law; |
| ● | a
“banking organization” within the meaning of the New York Banking Law; |
| ● | a
member of the Federal Reserve System; |
| ● | a
“clearing corporation” within the meaning of the New York Uniform Commercial
Code; and |
| ● | a
“clearing agency” registered pursuant to the provisions of Section 17A of
the Exchange Act. |
DTC holds securities that its participants deposit with DTC. DTC also
facilitates the settlement among its participants of securities transactions, such as transfers and pledges, in deposited securities
through electronic computerized book-entry changes in participants’ accounts, thereby eliminating the need for physical movement
of securities certificates. “Direct participants” in DTC include securities brokers and dealers, including underwriters,
banks, trust companies, clearing corporations and other organizations. DTC is a wholly-owned subsidiary of The Depository Trust &
Clearing Corporation (“DTCC”). DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income
Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access
to the DTC system is also available to others, which we sometimes refer to as indirect participants, that clear through or maintain a
custodial relationship with a direct participant, either directly or indirectly. The rules applicable to DTC and its participants
are on file with the SEC.
Purchases of securities under the DTC system must be made by or through
direct participants, which will receive a credit for the securities on DTC’s records. The ownership interest of the actual purchaser
of a security, which we sometimes refer to as a beneficial owner, is in turn recorded on the direct and indirect participants’
records. Beneficial owners of securities will not receive written confirmation from DTC of their purchases. However, beneficial owners
are expected to receive written confirmations providing details of their transactions, as well as periodic statements of their holdings,
from the direct or indirect participants through which they purchased securities. Transfers of ownership interests in global securities
are to be accomplished by entries made on the books of participants acting on behalf of beneficial owners. Beneficial owners will not
receive certificates representing their ownership interests in the global securities, except under the limited circumstances described
below.
To facilitate subsequent transfers, all global securities deposited
by direct participants with DTC will be registered in the name of DTC’s partnership nominee, Cede & Co., or such other
name as may be requested by an authorized representative of DTC. The deposit of securities with DTC and their registration in the name
of Cede & Co. or such other nominee will not change the beneficial ownership of the securities. DTC has no knowledge of the
actual beneficial owners of the securities. DTC’s records reflect only the identity of the direct participants to whose accounts
the securities are credited, which may or may not be the beneficial owners. The participants are responsible for keeping account of their
holdings on behalf of their customers.
So long as the securities are in book-entry form, you will receive
payments and may transfer securities only through the facilities of the depositary and its direct and indirect participants. If applicable,
we will maintain an office or agency in the location specified in the prospectus supplement for the applicable securities, where notices
and demands in respect of the securities and the indenture may be delivered to us and where certificated securities may be surrendered
for payment, registration of transfer or exchange.
Conveyance of notices and other communications by DTC to direct participants,
by direct participants to indirect participants and by direct participants and indirect participants to beneficial owners will be governed
by arrangements among them, subject to any legal requirements in effect from time to time.
Redemption notices will be sent to DTC. If less than all of the securities
of a particular series are being redeemed, DTC’s practice is to determine by lot the amount of the interest of each direct participant
in the securities of such series to be redeemed.
Neither DTC nor Cede & Co. (or such other DTC nominee) will
consent or vote with respect to the securities. Under its usual procedures, DTC will provide us with an omnibus proxy as soon as possible
after the record date. The omnibus proxy assigns the consenting or voting rights of Cede & Co. to those direct participants
to whose accounts the securities of such series are credited on the record date, identified in a listing attached to the omnibus proxy.
So long as securities are in book-entry form, we will make payments
on those securities to the depositary or its nominee, as the registered owner of such securities, by wire transfer of immediately available
funds. If securities are issued in definitive certificated form under the limited circumstances described below and unless if otherwise
provided in the description of the applicable securities herein or in the applicable prospectus supplement, we will have the option of
making payments by check mailed to the addresses of the persons entitled to payment or by wire transfer to bank accounts in the United
States designated in writing to the applicable trustee or other designated party at least 15 days before the applicable payment date
by the persons entitled to payment, unless a shorter period is satisfactory to the applicable trustee or other designated party.
Redemption proceeds, distributions and dividend payments on the securities
will be made to Cede & Co., or such other nominee as may be requested by an authorized representative of DTC. DTC’s practice
is to credit direct participants’ accounts upon DTC’s receipt of funds and corresponding detail information from us on the
payment date in accordance with their respective holdings shown on DTC records. Payments by participants to beneficial owners will be
governed by standing instructions and customary practices, as is the case with securities held for the account of customers in bearer
form or registered in “street name.” Those payments will be the responsibility of participants and not of DTC or us, subject
to any statutory or regulatory requirements in effect from time to time. Payment of redemption proceeds, distributions and dividend payments
to Cede & Co., or such other nominee as may be requested by an authorized representative of DTC, is our responsibility; disbursement
of payments to direct participants is the responsibility of DTC; and disbursement of payments to the beneficial owners is the responsibility
of direct and indirect participants.
Except under the limited circumstances described below, purchasers
of securities will not be entitled to have securities registered in their names and will not receive physical delivery of securities.
Accordingly, each beneficial owner must rely on the procedures of DTC and its participants to exercise any rights under the securities
and the indenture.
The laws of some jurisdictions may require that some purchasers of
securities take physical delivery of securities in definitive form. Those laws may impair the ability to transfer or pledge beneficial
interests in securities.
DTC may discontinue providing its services as securities depositary
with respect to the securities at any time by giving reasonable notice to us. Under such circumstances, in the event that a successor
depositary is not obtained, securities certificates are required to be printed and delivered.
As noted above, beneficial owners of a particular series of securities
generally will not receive certificates representing their ownership interests in those securities. However, if:
| ● | DTC
notifies us that it is unwilling or unable to continue as a depositary for the global security
or securities representing such series of securities or if DTC ceases to be a clearing agency
registered under the Exchange Act at a time when it is required to be registered and a successor
depositary is not appointed within 90 days of the notification to us or of our becoming aware
of DTC’s ceasing to be so registered, as the case may be; |
| ● | we
determine, in our sole discretion, not to have such securities represented by one or more
global securities; or |
| ● | an
event of default has occurred and is continuing with respect to such series of securities, |
we will prepare and deliver certificates for such securities in exchange
for beneficial interests in the global securities. Any beneficial interest in a global security that is exchangeable under the circumstances
described in the preceding sentence will be exchangeable for securities in definitive certificated form registered in the names that
the depositary directs. It is expected that these directions will be based upon directions received by the depositary from its participants
with respect to ownership of beneficial interests in the global securities.
Euroclear and Clearstream
If so provided in the applicable prospectus supplement, you may hold
interests in a global security through Clearstream Banking S.A., which we refer to as “Clearstream,” or Euroclear Bank S.A./N.V.,
as operator of the Euroclear System, which we refer to as “Euroclear,” either directly if you are a participant in Clearstream
or Euroclear or indirectly through organizations which are participants in Clearstream or Euroclear. Clearstream and Euroclear will hold
interests on behalf of their respective participants through customers’ securities accounts in the names of Clearstream and Euroclear,
respectively, on the books of their respective U.S. depositaries, which in turn will hold such interests in customers’ securities
accounts in such depositaries’ names on DTC’s books.
Clearstream and Euroclear are securities clearance systems in Europe.
Clearstream and Euroclear hold securities for their respective participating organizations and facilitate the clearance and settlement
of securities transactions between those participants through electronic book-entry changes in their accounts, thereby eliminating the
need for physical movement of certificates.
Payments, deliveries, transfers, exchanges, notices and other matters
relating to beneficial interests in global securities owned through Euroclear or Clearstream must comply with the rules and procedures
of those systems. Transactions between participants in Euroclear or Clearstream, on one hand, and other participants in DTC, on the other
hand, are also subject to DTC’s rules and procedures.
Investors will be able to make and receive through Euroclear and Clearstream
payments, deliveries, transfers and other transactions involving any beneficial interests in global securities held through those systems
only on days when those systems are open for business. Those systems may not be open for business on days when banks, brokers and other
institutions are open for business in the United States.
Cross-market transfers between participants in DTC, on the one hand,
and participants in Euroclear or Clearstream, on the other hand, will be effected through DTC in accordance with the DTC’s rules on
behalf of Euroclear or Clearstream, as the case may be, by their respective U.S. depositaries; however, such cross-market transactions
will require delivery of instructions to Euroclear or Clearstream, as the case may be, by the counterparty in such system in accordance
with the rules and procedures and within the established deadlines (European time) of such system. Euroclear or Clearstream, as
the case may be, will, if the transaction meets its settlement requirements, deliver instructions to its U.S. depositary to take action
to effect final settlement on its behalf by delivering or receiving interests in the global securities through DTC, and making or receiving
payment in accordance with normal procedures for same-day fund settlement. Participants in Euroclear or Clearstream may not deliver instructions
directly to their respective U.S. depositaries.
Due to time zone differences, the securities accounts of a participant
in Euroclear or Clearstream purchasing an interest in a global security from a direct participant in DTC will be credited, and any such
crediting will be reported to the relevant participant in Euroclear or Clearstream, during the securities settlement processing day (which
must be a business day for Euroclear or Clearstream) immediately following the settlement date of DTC. Cash received in Euroclear or
Clearstream as a result of sales of interests in a global security by or through a participant in Euroclear or Clearstream to a direct
participant in DTC will be received with value on the settlement date of DTC but will be available in the relevant Euroclear or Clearstream
cash account only as of the business day for Euroclear or Clearstream following DTC’s settlement date.
Other
The information in this section of this prospectus concerning DTC,
Clearstream, Euroclear and their respective book-entry systems has been obtained from sources that we believe to be reliable, but we
do not take responsibility for this information. This information has been provided solely as a matter of convenience. The rules and
procedures of DTC, Clearstream and Euroclear are solely within the control of those organizations and could change at any time. Neither
we nor the trustee nor any agent of ours or of the trustee has any control over those entities and none of us takes any responsibility
for their activities. You are urged to contact DTC, Clearstream and Euroclear or their respective participants directly to discuss those
matters. In addition, although we expect that DTC, Clearstream and Euroclear will perform the foregoing procedures, none of them is under
any obligation to perform or continue to perform such procedures and such procedures may be discontinued at any time. Neither we nor
any agent of ours will have any responsibility for the performance or nonperformance by DTC, Clearstream and Euroclear or their respective
participants of these or any other rules or procedures governing their respective operations.
SELLING SECURITYHOLDERS
Information about selling securityholders, where applicable, will
be set forth in a prospectus supplement, in a post-effective amendment or in filings we make with the SEC under the Exchange Act that
are incorporated by reference.
PLAN OF DISTRIBUTION
We or selling securityholders may sell the offered securities from
time to time pursuant to underwritten public offerings, direct sales to the public, “at the market” offerings, negotiated
transactions, bought deals, block trades or a combination of these methods or through underwriters or dealers, through agents and/or
directly to one or more purchasers. In addition, we may issue the securities as a dividend or distribution or in a subscription rights
offering to our existing securityholders. We or selling securityholders may distribute securities from time to time in one or more transactions:
| ● | at
a fixed price or prices, which may be changed; |
| ● | at
market prices prevailing at the time of sale; |
| ● | at
prices related to such prevailing market prices; or |
The
terms of the offering of the securities and the specific plan of distribution will be described in a prospectus supplement or
supplements to this prospectus, any related free writing prospectus that we may authorize to be provided to you, an amendment to the
registration statement of which this prospectus is a part or other filings we make with the SEC under the Exchange Act that are incorporated
by reference. Such description may include, to the extent applicable:
| ● | the
name or names of any underwriters, dealers, agents or other purchasers; |
| ● | the
name or names of any selling securityholders; |
| ● | the
purchase price of the securities or other consideration therefor, and the proceeds, if any,
we will receive from the sale; |
| ● | any
options to purchase additional shares or other options under which underwriters, dealers,
agents or other purchasers may purchase additional securities from us or any selling securityholders; |
| ● | any
agency fees or underwriting discounts and other items constituting agents’ or underwriters’
compensation; |
| ● | any
public offering price; |
| ● | any
discounts or concessions allowed or reallowed or paid to dealers; and |
| ● | any
securities exchange or market on which the securities may be listed. |
Only underwriters named in the prospectus supplement will be underwriters
of the securities offered by the prospectus supplement. Dealers and agents participating in the distribution of the securities may be
deemed to be underwriters, and compensation received by them on resale of the securities may be deemed to be underwriting discounts.
If such dealers or agents were deemed to be underwriters, they may be subject to statutory liabilities under the Securities Act.
If underwriters are used in the sale, they will acquire the securities
for their own account and may resell the securities from time to time in one or more transactions at a fixed public offering price or
at varying prices determined at the time of sale. The obligations of the underwriters to purchase the securities will be subject to the
conditions set forth in the applicable underwriting agreement. We or selling securityholders may offer the securities to the public through
underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. Subject to certain conditions, the
underwriters will be obligated to purchase all of the securities offered by the prospectus supplement, other than securities covered
by any option to purchase additional shares or other option. If a dealer is used in the sale of securities, we, a selling securityholder
or an underwriter will sell the securities to the dealer, as principal. The dealer may then resell the securities to the public at varying
prices to be determined by the dealer at the time of resale. To the extent required, the prospectus supplement will set forth the name
of the dealer and the terms of the transaction. Any public offering price and any discounts or concessions allowed or reallowed or paid
to dealers may change from time to time. We or selling securityholders may use underwriters, dealers or agents with whom we have a material
relationship. The prospectus supplement will describe the nature of any such relationship, naming the underwriter, dealer or agent.
We or selling securityholders may sell securities directly or through
agents we designate from time to time. The prospectus supplement will name any agent involved in the offering and sale of securities
and will describe any commissions payable to the agent. Unless the prospectus supplement states otherwise, the agent will act on a best
efforts basis for the period of its appointment.
If we offer securities in a subscription rights offering to our existing
securityholders, we may enter into a standby underwriting agreement with dealers, acting as standby underwriters. We may pay the standby
underwriters a commitment fee for the securities they commit to purchase on a standby basis. If we do not enter into a standby underwriting
arrangement, we may retain a dealer-manager to manage a subscription rights offering for us.
We may authorize agents, underwriters or dealers to solicit offers
by certain types of institutional investors to purchase securities from us at the public offering price set forth in the prospectus supplement
pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. We will describe the conditions
to these contracts and the commissions we must pay for solicitation of these contracts in the prospectus supplement.
We may provide agents, dealers and underwriters with indemnification
against civil liabilities, including liabilities under the Securities Act, or contribution with respect to payments that the agents or
dealers or underwriters may make with respect to these liabilities. Agents, dealers and underwriters or their affiliates may engage in
transactions with or perform services for us in the ordinary course of business.
Selling securityholders may be deemed to be underwriters under the
Securities Act 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.
All securities we may offer, other than common stock, will be new
issues of securities with no established trading market. Any underwriters may make a market in these securities, but will not be obligated
to do so and may discontinue any market making at any time without notice. We cannot guarantee the liquidity of the trading markets for
any securities.
Any underwriter may be granted an option to purchase additional shares,
and engage in stabilizing transactions, short-covering transactions and penalty bids in accordance with Regulation M under the Exchange
Act. An underwriter’s option to purchase additional shares involves sales in excess of the offering size, which create a short
position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified
maximum price. Syndicate-covering or other short-covering transactions involve purchases of the securities, either through exercise of
the option to purchase additional shares or in the open market after the distribution is completed, to cover short positions. Penalty
bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased
in a stabilizing or covering transaction to cover short positions. Those activities may cause the price of the securities to be higher
than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time.
Any underwriters, dealers or agents that are qualified market makers
on Nasdaq may engage in passive market making transactions in our common stock on Nasdaq in accordance with Regulation M under the Exchange
Act, during the business day prior to the pricing of the offering, before the commencement of offers or sales of the common stock. Passive
market makers must comply with applicable volume and price limitations and must be identified as passive market makers. In general, a
passive market maker must display its bid at a price not in excess of the highest independent bid for such security; if all independent
bids are lowered below the passive market maker’s bid, however, the passive market maker’s bid must then be lowered when
certain purchase limits are exceeded. Passive market making may stabilize the market price of the securities at a level above that which
might otherwise prevail in the open market and, if commenced, may be discontinued at any time.
We or selling securityholders may engage in at the market offerings
into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act. Such offering may be made into
an existing trading market for such securities in transactions at other than a fixed price, either on or through the facilities of Nasdaq
or any other securities exchange or quotation or trading service on which such securities may be listed, quoted or traded at the time
of sale and/or to or through a market maker other than on Nasdaq or such other securities exchanges or quotation or trading services.
Such at the market offerings, if any, may be conducted by underwriters acting as principal or agent. In addition, we may enter into derivative
transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions.
If the applicable prospectus supplement so indicates, in connection with those derivatives, the third parties may sell securities covered
by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party may use securities
pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities
received from us in settlement of those derivatives to close out any related open borrowings of stock. The third party in such sale transactions
will be an underwriter and will be named in the applicable prospectus supplement (or a post-effective
amendment). In addition, we may otherwise loan or pledge securities to a financial institution or other third party that in turn may
sell the securities short using this prospectus and an applicable prospectus supplement. Such financial institution or other third party
may transfer its economic short position to investors in our securities or in connection with a concurrent offering of other securities.
The material terms of any lock-up provisions in respect of any given
offering will be described in the applicable prospectus supplement.
LEGAL MATTERS
Thompson Hine LLP will pass upon certain legal matters relating to
the issuance and sale of the securities offered hereby on behalf of the Company. Additional legal matters may be passed upon for us,
any selling securityholders or any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements of Apollo Medical Holdings,
Inc. appearing in Apollo Medical Holdings, Inc.’s Annual Report (Form 10-K/A) for the year ended December 31, 2022, and the effectiveness
of Apollo Medical Holdings, 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 Distribution
The following is an estimate of the expenses (all of which are to
be paid by the Company) that we may incur in connection with the securities being registered hereby.
| SEC registration fee | |
$ | (1 | ) |
| FINRA filing fee | |
| (2 | ) |
| Stock exchange listing fee | |
| (2 | ) |
| Printing expenses | |
| (2 | ) |
| Legal fees and expenses | |
| (2 | ) |
| Accounting fees and expenses | |
| (2 | ) |
| Blue sky, qualification fees and expenses | |
| (2 | ) |
| Transfer agent, trustee’s and depositary’s fees
and expenses | |
| (2 | ) |
| Miscellaneous | |
| (2 | ) |
| Total | |
$ | (2 | ) |
| (1) | Pursuant to Rules 456(b) and 457(r) under the Securities
Act, the SEC registration fee will be paid at the time of any particular offering of securities
under the registration statement and is therefore not currently determinable. |
| (2) | These fees are calculated based on the securities offered and the number
of issuances and accordingly cannot be estimated at this time. |
Item 15. Indemnification of Directors and Officers
Among other things, Section 102 of the Delaware General Corporation
Law (the “DGCL”) permits a corporation to eliminate the personal liability of directors of a corporation to the corporation
or its stockholders for monetary damages for a breach of fiduciary duty as a director, except where the director breached his or her
duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of
a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit.
Section 145 of the DGCL provides that a corporation has the power
to indemnify a director, officer, employee, or agent of the corporation, or a person serving at the request of the corporation for another
corporation, partnership, joint venture, trust or other enterprise in related capacities, against expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with any threatened,
pending or completed action, suit or proceeding to which he or she was or is a party, or is threatened to be made a party, by reason
of such position, if such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best
interests of the corporation, and, in any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful,
except that, in the case of actions brought by or in the right of the corporation, no indemnification will be made with respect to any
claim, issue or matter as to which such person has been adjudged to be liable to the corporation unless and only to the extent that the
Delaware Court of Chancery or other adjudicating court determines that, despite the adjudication of liability but in view of all of the
circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Delaware Court of Chancery
or such other court deems proper.
The Company’s Restated By-Laws, as amended, allow for, and the
Company’s Restated Certificate of Incorporation, as amended (the “Certificate of Incorporation”), provides for, indemnification
of the Company’s current and former directors, officers, committee members or representatives to the full extent permitted by the
DGCL. In addition, the Company’s Certificate of Incorporation provides that, to the fullest extent permitted by the DGCL, a director
of the Company shall not be personally liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as
a director. These indemnification provisions may be sufficiently broad to permit indemnification of the Company’s officers and
directors for liabilities (including reimbursement of expenses incurred) arising under the Securities Act.
The Company has entered into indemnification agreements with certain
directors and executive officers to provide these directors and executive officers additional contractual assurances regarding the scope
of the indemnification set forth in the Certificate of Incorporation and to provide additional procedural protections. The Company’s
directors and officers are also covered by insurance policies maintained by the Company against certain liabilities for actions taken
in their capacities as such, including liabilities under the Securities Act.
Item 16. Exhibits
Exhibit
No. |
|
Description |
| 1.1* |
|
Form of Underwriting Agreement. |
| 2.1+ |
|
Agreement
and Plan of Merger, dated December 21, 2016, by and among Apollo Medical Holdings, Inc., Network Medical Management, Inc.,
Apollo Acquisition Corp. and Kenneth Sim, M.D. (incorporated herein by reference to Annex A to the joint proxy statement/prospectus
filed pursuant to Rule 424(b)(3) on November 15, 2017 that is a part of a Registration Statement on Form S-4
(File No. 333-219898)). |
| 2.2 |
|
Amendment
to the Agreement and Plan of Merger, dated March 30, 2017, by and among Apollo Medical Holdings, Inc., Network Medical
Management, Inc., Apollo Acquisition Corp. and Kenneth Sim, M.D. (incorporated herein by reference to Annex A to the joint
proxy statement/prospectus filed pursuant to Rule 424(b)(3) on November 15, 2017 that is a part of a Registration
Statement on Form S-4 (File No. 333-219898)). |
| 2.3 |
|
Amendment
No. 2 to the Agreement and Plan of Merger, dated October 17, 2017, by and among Apollo Medical Holdings, Inc., Network
Medical Management, Inc., Apollo Acquisition Corp. and Kenneth Sim, M.D. (incorporated herein by reference to Annex A to
the joint proxy statement/prospectus filed pursuant to Rule 424(b)(3) on November 15, 2017 that is a part of a Registration
Statement on Form S-4 (File No. 333-219898)). |
| 2.4 |
|
Stock
Purchase Agreement, dated March 15, 2019, by and between Allied Physicians of California, APC-LSMA Designated Shareholder Medical
Corporation, and Dr. Kevin Tyson (incorporated herein by reference to Exhibit 2.4 to the Company’s Quarterly Report
on Form 10-Q filed on May 10, 2019). |
| 2.5+ |
|
Stock
Purchase Agreement, dated as of December 31, 2019, among Bright Health Company of California, Inc., the sellers party thereto,
Universal Care, Inc., the seller representatives set forth therein, and Bright Health, Inc. (solely for purposes of Section 13.22
thereto) (incorporated herein by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K filed on May 6,
2020). |
| 3.1 |
|
Restated
Certificate of Incorporation (incorporated herein by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K
filed on January 21, 2015). |
| 3.2 |
|
Certificate
of Amendment of Restated Certificate of Incorporation (incorporated herein by reference to Exhibit 3.1 to the Company’s
Current Report on Form 8-K filed on April 27, 2015). |
| 3.3 |
|
Certificate
of Amendment of Restated Certificate of Incorporation (incorporated herein by reference to Exhibit 3.1 to the Company’s
Current Report on Form 8-K filed on December 13, 2017). |
| 3.4 |
|
Certificate
of Amendment of Restated Certificate of Incorporation (incorporated herein by reference to Exhibit 3.1 to the Company’s
Current Report on Form 8-K filed June 21, 2018). |
| 3.5 |
|
Restated
Bylaws (incorporated herein by reference to Exhibit 3.2 to the Company’s Quarterly Report on Form 10-Q filed on November 16,
2015). |
| 3.6 |
|
Amendment
to Sections 3.1 and 3.2 of Article III of Bylaws (incorporated herein by reference to Exhibit 3.2 to the Company’s
Current Report on Form 8-K filed on December 13, 2017). |
| 3.7 |
|
Amendment
to Sections 3.1 and 3.2 of Article III of Bylaws (incorporated herein by reference to Exhibit 3.2 to the Company’s
Current Report on Form 8-K filed on June 21, 2018). |
| 3.8 |
|
Certificate
of Designation of Series A Convertible Preferred Stock (incorporated herein by reference to Exhibit 3.1 to the Company’s
Current Report on Form 8-K filed on October 19, 2015). |
| 3.9 |
|
Amended
and Restated Certificate of Designation (incorporated herein by reference to Exhibit 3.1 to the Company’s Current Report
on Form 8-K filed on April 4, 2016). |
| 4.1 |
|
Form of
Certificate for Common Stock of Apollo Medical Holdings, Inc., par value $0.001 per share (incorporated herein by reference
to Exhibit 4.1 to the Company’s Annual Report on Form 10-K filed on April 2, 2018). |
| 4.2 |
|
Voting
and Registration Rights Agreement, dated as of September 11, 2019, by and between Apollo Medical Holdings, Inc. and Allied
Physicians of California (incorporated herein by reference to Exhibit 10.9 to the Company’s Current Report on Form 8-K
filed on September 12, 2019). |
| 4.3 |
|
Securities
Purchase Agreement, dated as of March 30, 2017, between Apollo Medical Holdings, Inc. and Alliance Apex, LLC (incorporated
herein by reference to Exhibit 10.1 to ApolloMed’s Current Report on Form 8-K filed on April 5, 2017). |
| 4.4* |
|
Form of Certificate of Designation for the Preferred
Stock (together with Preferred Stock Certificate). |
| 4.5 |
|
Form of
Indenture. |
| 4.6* |
|
Form of Debt Securities. |
| 4.7* |
|
Form of Deposit Agreement. |
| 4.8* |
|
Form of Warrant. |
| 4.9* |
|
Form of Warrant Agreement. |
| 4.10* |
|
Form of Purchase Contract Agreement. |
| 4.11* |
|
Form of Unit Agreement. |
| 4.12* |
|
Form of Subscription Rights Agreement. |
| 5.1 |
|
Opinion
of Thompson Hine LLP. |
| 23.1 |
|
Consent
of Independent Registered Public Accounting Firm. |
| 23.2 |
|
Consent
of Thompson Hine LLP (included in Exhibit 5.1). |
| 24.1 |
|
Power
of Attorney (incorporated by reference to the signature page hereto). |
| 25.1** |
|
Statement of Eligibility on Form T-1 under the
Trust Indenture Act of 1939, as amended, of the trustee under the indenture filed as Exhibit 4.4 above. |
| 107 |
|
Filing
Fee Table. |
| + |
Certain of the exhibits and schedules to this exhibit have been omitted in accordance with Regulation S-K Item 601(a)(5). The
Company agrees to furnish a copy of all omitted exhibits and schedules to the SEC upon its request. |
| * | To be filed by amendment or as an exhibit to a Current Report on Form 8-K and incorporated herein
by reference, if applicable. |
| ** | To be filed in accordance with the requirements of Section 305(b)(2) of the Trust Indenture
Act of 1939, as amended, and the applicable rules thereunder. |
Item 17. Undertakings
(a) The
undersigned registrant hereby undertakes:
| (1) | To file, during any period in which offers
or sales are being made, a post-effective amendment to this registration statement: |
| |
(i) |
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
| (ii) | To reflect in the prospectus any facts
or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed
with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum aggregate offering price
set forth in the “Calculation of Filing Fee Tables” or “Calculation of
Registration Fee” table, as applicable, in the effective registration statement; and |
| (iii) | To include any material information with
respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement; |
provided, however, that paragraphs (a)(1)(i),
(a)(1)(ii) and (a)(1)(iii) 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 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 a registrant pursuant
to Rule 424(b)(3) shall be deemed to be part of the registration statement as of
the date the filed prospectus was deemed part of and included in the registration statement;
and |
| (ii) | Each prospectus required to be filed pursuant
to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in
reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i),
(vii) or (x) for the purpose of providing the information required by Section 10(a) of
the Securities Act of 1933 shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is first used after effectiveness
or the date of the first contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person
that is at that date an underwriter, such date shall be deemed to be a new effective date
of the registration statement relating to the securities in the registration statement to
which the 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 provisions described
under Item 15 above, 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 a registrant of expenses incurred or paid by a director, officer or controlling person of
a 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, that 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. |
| (j) | The undersigned registrant hereby undertakes to file an application for the purpose of determining
the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture
Act (the “Act”) in accordance with the rules and regulations prescribed by the SEC
under Section 305(b)(2) of the 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 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
Alhambra, State of California, on August 16, 2023.
| |
APOLLO MEDICAL HOLDINGS, INC. |
| |
|
|
| Date: August 16,
2023 |
By: |
/s/ Thomas Lam |
| |
|
Thomas
Lam, M.D., M.P.H. |
| |
|
Co-Chief Executive Officer
and President |
| |
|
(Principal Executive
Officer) |
| |
|
|
| Date: August 16,
2023 |
By: |
/s/ Brandon Sim |
| |
|
Brandon
Sim |
| |
|
Co-Chief Executive Officer |
| |
|
(Principal Executive
Officer) |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person
whose signature appears below constitutes and appoints each of Thomas S. Lam, M.D., M.P.H. and Brandon Sim as his or her true and lawful
attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him or her and in his or her name, place and
stead, in any and all capacities, to file and sign any and all amendments, including post-effective amendments, to this registration
statement and any other registration statement for the same offering that is to be effective under Rule 462(b) of the Securities
Act of 1933, as amended, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection therewith and about the premises as fully to all intents
and purposes as such person might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and
agents, or such person’s 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 dates indicated.
| SIGNATURE |
|
TITLE |
|
DATE |
| |
|
|
|
|
|
| By: |
/s/
Thomas S. Lam |
|
Co-Chief
Executive Officer (Principal Executive Officer), President, and Director |
|
August 16,
2023 |
| |
Thomas
S. Lam, M.D., M.P.H. |
|
|
|
| |
|
|
|
|
|
| By: |
/s/
Brandon Sim |
|
Co-Chief
Executive Officer (Principal Executive Officer) |
|
August 16,
2023 |
| |
Brandon
Sim |
|
|
|
| |
|
|
|
|
|
| By: |
/s/
Chandan Basho |
|
Chief
Financial Officer and Chief Strategy Officer (Principal Financial Officer) |
|
August 16,
2023 |
| |
Chandan
Basho |
|
|
|
| |
|
|
|
|
|
| By: |
/s/
John Vong |
|
Chief
Accounting Officer (Principal Accounting Officer) |
|
August 16,
2023 |
| |
John
Vong |
|
|
|
| |
|
|
|
|
|
| By: |
/s/
Kenneth Sim |
|
Executive
Chairman, Director |
|
August 16,
2023 |
| |
Kenneth
Sim, M.D |
|
|
|
|
| |
|
|
|
|
|
| By: |
/s/
John Chiang |
|
Director |
|
August 16,
2023 |
| |
John
Chiang |
|
|
|
|
| |
|
|
|
|
|
| By: |
/s/
Weili Dai |
|
Director |
|
August 16,
2023 |
| |
Weili
Dai |
|
|
|
|
| |
|
|
|
|
|
| By: |
/s/
J. Lorraine Estradas |
|
Director |
|
August 16,
2023 |
| |
J.
Lorraine Estradas, R.N., B.S.N., M.P.H. |
|
|
|
|
| |
|
|
|
|
|
| By: |
/s/
Mitchell W. Kitayama |
|
Director |
|
August 16,
2023 |
| |
Mitchell
W. Kitayama |
|
|
|
|
| |
|
|
|
|
|
| By: |
/s/
Linda Marsh |
|
Director |
|
August 16,
2023 |
| |
Linda
Marsh |
|
|
|
|
| |
|
|
|
|
|
| By: |
/s/
Matthew Mazdyasni |
|
Director |
|
August 16,
2023 |
| |
Matthew
Mazdyasni |
|
|
|
|
| |
|
|
|
|
|
| By: |
/s/
David G. Schmidt |
|
Director |
|
August 16,
2023 |
| |
David
G. Schmidt |
|
|
|
|
Exhibit 4.5
APOLLO
MEDICAL HOLDINGS, INC.,
Issuer
AND
[TRUSTEE],
Trustee
INDENTURE
Dated
as of [●], 20__
Debt
Securities
Table
Of Contents
| |
|
Page |
| ARTICLE 1 DEFINITIONS |
1 |
| Section 1.01 |
Definitions of Terms |
1 |
| |
|
|
| ARTICLE 2 ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
5 |
| Section 2.01 |
Designation and Terms of Securities |
5 |
| Section 2.02 |
Form of Securities and Trustee’s Certificate |
8 |
| Section 2.03 |
Denominations: Provisions for Payment |
8 |
| Section 2.04 |
Execution and Authentications |
10 |
| Section 2.05 |
Registration of Transfer and Exchange |
11 |
| Section 2.06 |
Temporary Securities |
12 |
| Section 2.07 |
Mutilated, Destroyed, Lost or Stolen Securities |
12 |
| Section 2.08 |
Cancellation |
13 |
| Section 2.09 |
Benefits of Indenture |
14 |
| Section 2.10 |
Authenticating Agent |
14 |
| Section 2.11 |
Global Securities |
14 |
| Section 2.12 |
CUSIP Numbers |
15 |
| |
|
|
| ARTICLE 3 REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS |
15 |
| Section 3.01 |
Redemption |
15 |
| Section 3.02 |
Notice of Redemption |
16 |
| Section 3.03 |
Payment Upon Redemption |
17 |
| Section 3.04 |
Sinking Fund |
17 |
| Section 3.05 |
Satisfaction of Sinking Fund Payments with Securities |
18 |
| Section 3.06 |
Redemption of Securities for Sinking Fund |
18 |
| |
|
|
| ARTICLE 4 COVENANTS |
18 |
| Section 4.01 |
Payment of Principal, Premium and Interest |
18 |
| Section 4.02 |
Maintenance of Office or Agency |
19 |
| Section 4.03 |
Paying Agents |
19 |
| Section 4.04 |
Appointment to Fill Vacancy in Office of Trustee |
20 |
Table
Of Contents
(continued)
| |
|
Page |
| ARTICLE 5 SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
20 |
| Section 5.01 |
Company to Furnish Trustee Names and Addresses of Securityholders |
20 |
| Section 5.02 |
Preservation Of Information; Communications With Securityholders |
20 |
| Section 5.03 |
Reports by the Company |
21 |
| Section 5.04 |
Reports by the Trustee |
21 |
| |
|
|
| ARTICLE 6 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
22 |
| Section 6.01 |
Events of Default |
22 |
| Section 6.02 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
24 |
| Section 6.03 |
Application of Moneys Collected |
25 |
| Section 6.04 |
Limitation on Suits |
25 |
| Section 6.05 |
Rights and Remedies Cumulative; Delay or Omission Not Waiver |
26 |
| Section 6.06 |
Control by Securityholders |
27 |
| Section 6.07 |
Undertaking to Pay Costs |
27 |
| |
|
|
| ARTICLE 7 CONCERNING THE TRUSTEE |
27 |
| Section 7.01 |
Certain Duties and Responsibilities of Trustee |
27 |
| Section 7.02 |
Certain Rights of Trustee |
29 |
| Section 7.03 |
Trustee Not Responsible for Recitals or Issuance or Securities |
31 |
| Section 7.04 |
May Hold Securities |
31 |
| Section 7.05 |
Moneys Held in Trust |
31 |
| Section 7.06 |
Compensation and Reimbursement |
32 |
| Section 7.07 |
Reliance on Officer’s Certificate |
32 |
| Section 7.08 |
Disqualification; Conflicting Interests |
33 |
| Section 7.09 |
Corporate Trustee Required; Eligibility |
33 |
| Section 7.10 |
Resignation and Removal; Appointment of Successor |
33 |
| Section 7.11 |
Acceptance of Appointment By Successor |
34 |
| Section 7.12 |
Merger, Conversion, Consolidation or Succession to Business |
36 |
| Section 7.13 |
Preferential Collection of Claims Against the Company |
36 |
| Section 7.14 |
Notice of Default |
36 |
Table
Of Contents
(continued)
| |
|
Page |
| ARTICLE 8 CONCERNING THE SECURITYHOLDERS |
36 |
| Section 8.01 |
Evidence of Action by Securityholders |
36 |
| Section 8.02 |
Proof of Execution by Securityholders |
37 |
| Section 8.03 |
Who May be Deemed Owners |
37 |
| Section 8.04 |
Certain Securities Owned by Company Disregarded |
38 |
| Section 8.05 |
Actions Binding on Future Securityholders |
38 |
| |
|
|
| ARTICLE 9 SUPPLEMENTAL INDENTURES |
38 |
| Section 9.01 |
Supplemental Indentures Without the Consent of Securityholders |
38 |
| Section 9.02 |
Supplemental Indentures With Consent of Securityholders |
40 |
| Section 9.03 |
Effect of Supplemental Indentures |
40 |
| Section 9.04 |
Securities Affected by Supplemental Indentures |
40 |
| Section 9.05 |
Execution of Supplemental Indentures |
41 |
| |
|
|
| ARTICLE 10 SUCCESSOR ENTITY |
41 |
| Section 10.01 |
Company May Consolidate, Etc. |
41 |
| Section 10.02 |
Successor Entity Substituted |
42 |
| |
|
|
| ARTICLE 11 SATISFACTION AND DISCHARGE |
42 |
| Section 11.01 |
Satisfaction and Discharge of Indenture |
42 |
| Section 11.02 |
Discharge of Obligations |
43 |
| Section 11.03 |
Deposited Moneys to be Held in Trust |
43 |
| Section 11.04 |
Payment of Moneys Held by Paying Agents |
43 |
| Section 11.05 |
Repayment to Company |
43 |
| |
|
|
| ARTICLE 12 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
44 |
| Section 12.01 |
No Recourse |
44 |
Table Of Contents
(continued)
| |
|
Page |
| ARTICLE 13 MISCELLANEOUS PROVISIONS |
44 |
| Section 13.01 |
Effect on Successors and Assigns |
44 |
| Section 13.02 |
Actions by Successor |
44 |
| Section 13.03 |
Surrender of Company Powers |
45 |
| Section 13.04 |
Notices |
45 |
| Section 13.05 |
Governing Law; Jury Trial Waiver |
45 |
| Section 13.06 |
Treatment of Securities as Debt |
45 |
| Section 13.07 |
Certificates and Opinions as to Conditions Precedent |
45 |
| Section 13.08 |
Payments on Business Days |
46 |
| Section 13.09 |
Conflict with Trust Indenture Act |
46 |
| Section 13.10 |
Counterparts |
46 |
| Section 13.11 |
Separability |
46 |
| Section 13.12 |
Compliance Certificates |
47 |
| Section 13.13 |
U.S.A. Patriot Act |
47 |
| Section 13.14 |
Force Majeure |
47 |
| Section 13.15 |
Table of Contents; Headings |
47 |
INDENTURE
Indenture,
dated as of [●], 20__, among Apollo Medical Holdings, Inc., a Delaware corporation (the “Company”), and
[Trustee], as trustee (the “Trustee”):
Whereas,
for its lawful corporate purposes, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance
of debt securities (hereinafter referred to as the “Securities”), in an unlimited aggregate principal amount to be issued
from time to time in one or more series as in this Indenture provided, as registered Securities without coupons, to be authenticated by
the certificate of the Trustee;
Whereas,
to provide the terms and conditions upon which the Securities are to be authenticated, issued and delivered, the Company has duly authorized
the execution of this Indenture; and
Whereas,
all things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
Now,
Therefore, in consideration of the premises and the purchase of the Securities by the holders thereof, it is mutually covenanted
and agreed as follows for the equal and ratable benefit of the holders of Securities:
ARTICLE 1
DEFINITIONS
Section 1.01
Definitions of Terms.
The
terms defined in this Section (except as in this Indenture or any indenture supplemental hereto otherwise expressly provided or unless
the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective
meanings specified in this Section and shall include the plural as well as the singular. All other terms used in this Indenture that
are defined in the Trust Indenture Act of 1939, as amended, or that are by reference in such Act defined in the Securities Act of 1933,
as amended (except as herein or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires),
shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of the execution
of this instrument.
“Authenticating
Agent” means the Trustee or an authenticating agent with respect to all or any of the series of Securities appointed by
the Trustee pursuant to Section 2.10.
“Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
“Board
of Directors” means the Board of Directors (or the functional equivalent thereof) of the Company or any duly authorized
committee of such Board.
“Board
Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors (or duly authorized committee thereof) and to be in full force and effect on the date of such certification.
“Business
Day” means, with respect to any series of Securities, any day other than a day on which federal or state banking institutions
in the Borough of Manhattan, the City of New York, or in the city of the Corporate Trust Office of the Trustee, are authorized or obligated
by law, executive order or regulation to close.
“Commission”
means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
“Company”
means Apollo Medical Holdings, Inc., a corporation duly organized and existing under the laws of the State of Delaware, and, subject
to the provisions of Article 10, shall also include its successors and assigns.
“Corporate
Trust Office” means the office of the Trustee at which, at any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at [●].
“Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Defaulted
Interest” has the meaning set forth in Section 2.03.
“Depositary”
means, with respect to Securities of any series for which the Company shall determine that such Securities will be issued as a Global
Security, The Depository Trust Company, another clearing agency, or any successor registered as a clearing agency under the Exchange Act,
or other applicable statute or regulation, which, in each case, shall be designated by the Company pursuant to either Section 2.01
or 2.11.
“Event
of Default” means, with respect to Securities of a particular series, any event specified in Section 6.01, continued
for the period of time, if any, therein designated.
“Exchange
Act” means the United States Securities and Exchange Act of 1934, as amended, and the rules and regulations promulgated
by the Commission thereunder.
The
term “given”, “mailed”, “notify” or “sent”
with respect to any notice to be given to a Securityholder pursuant to this Indenture, shall mean notice (x) given to the Depositary
(or its designee) pursuant to the standing instructions from the Depositary or its designee, including by electronic mail in accordance
with accepted practices or procedures at the Depositary (in the case of a Global Security) or (y) mailed to such Securityholder by
first class mail, postage prepaid, at its address as it appears on the Security Register (in the case of a definitive Security). Notice
so “given” shall be deemed to include any notice to be “mailed” or “delivered,” as applicable, under
this Indenture.
“Global
Security” means a Security issued to evidence all or a part of any series of Securities which is executed by the Company
and authenticated and delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction, all in accordance
with the Indenture, which shall be registered in the name of the Depositary or its nominee.
“Governmental
Obligations” means securities that are (a) direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (b) obligations 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 that, in either case, are not callable or redeemable at the option of the issuer thereof at any time prior to the stated
maturity of the Securities, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to
any such Governmental Obligation or a specific payment of principal of or interest on any such Governmental Obligation held by such custodian
for the account of the holder of such depositary receipt; provided, however, that (except as required by law) such custodian is not authorized
to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect
of the Governmental Obligation or the specific payment of principal of or interest on the Governmental Obligation evidenced by such depositary
receipt.
“herein”,
“hereof” and “hereunder”, and other words of similar import, refer to this Indenture
as a whole and not to any particular Article, Section or other subdivision.
“Indenture”
means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental
hereto entered into in accordance with the terms hereof and shall include the terms of particular series of Securities established as
contemplated by Section 2.01.
“Interest
Payment Date”, when used with respect to any installment of interest on a Security of a particular series, means the date
specified in such Security or in a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date
on which an installment of interest with respect to Securities of that series is due and payable.
“Officer”
means, with respect to the Company, the chairman of the Board of Directors, a chief executive officer, a president, a chief financial
officer, a chief operating officer, any executive vice president, any senior vice president, any vice president, the treasurer or any
assistant treasurer, the controller or any assistant controller or the secretary or any assistant secretary, or any other officer of the
Company designated as such pursuant to an Officer’s Certificate.
“Officer’s
Certificate” means a certificate signed by any Officer. Each such certificate shall include the statements provided for
in Section 13.07, if and to the extent required by the provisions thereof.
“Opinion
of Counsel” means an opinion in writing subject to customary exceptions of legal counsel, who may be an employee of or counsel
for the Company, that is delivered to the Trustee in accordance with the terms hereof. Each such opinion shall include the statements
provided for in Section 13.07, if and to the extent required by the provisions thereof.
“Outstanding”,
when used with reference to Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time,
all Securities of that series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities
theretofore canceled by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that have
previously been canceled; (b) Securities or portions thereof for the payment or redemption of which moneys or Governmental Obligations
in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall
have been set aside and segregated in trust by the Company (if the Company shall act as its own paying agent); provided, however, that
if such Securities or portions of such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have
been given as provided in Article 3, or provision satisfactory to the Trustee shall have been made for giving such notice; and (c) Securities
in lieu of or in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.07.
“Person”
means any individual, corporation, partnership, joint venture, joint-stock company, limited liability company, association, trust, unincorporated
organization, any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Predecessor
Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.07
in lieu of a lost, destroyed or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“Responsible
Officer” when used with respect to the Trustee means any officer within the Corporate Trust Office of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any
of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter
is referred because of his or her knowledge of and familiarity with the particular subject and in each case who shall have direct responsibility
for the administration of this Indenture.
“Securities”
has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under
this Indenture.
“Securities
Act” means the Securities Act of 1933, as amended.
“Securityholder”,
“holder of Securities”, “registered holder”, or other similar term, means the Person
or Persons in whose name or names a particular Security is registered on the Security Register kept for that purpose in accordance with
the terms of this Indenture.
“Security
Register” and “Security Registrar” shall have the meanings as set forth in Section 2.05.
“Subsidiary”
means, with respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of the total
voting power of shares of capital stock or other interests (including partnership interests) entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers, general partners or trustees thereof is at the time owned or controlled,
directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii) one
or more Subsidiaries of such Person.
“Trustee”
means [●], and, subject to the provisions of Article 7, shall also include its successors and assigns, and, if at any time
there is more than one Person acting in such capacity hereunder, “Trustee” shall mean each such Person. The term “Trustee”
as used with respect to a particular series of the Securities shall mean the trustee with respect to that series.
“Trust
Indenture Act” means the Trust Indenture Act of 1939, as amended.
“U.S.A.
Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001, Pub. L. 107-56, as amended and signed into law October 26, 2001.
ARTICLE 2
ISSUE,
DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
Section 2.01
Designation and Terms of Securities.
(a) The
aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may
be issued in one or more series up to the aggregate principal amount of Securities of that series from time to time authorized by or pursuant
to a Board Resolution or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities of any series,
there shall be established in or pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one
or more indentures supplemental hereto:
(1) the
title of the Securities of the series (which shall distinguish the Securities of that series from all other Securities);
(2) any
limit upon the aggregate principal amount of the Securities of that series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of that series);
(3) the
maturity date or dates on which the principal of the Securities of the series is payable;
(4) the
form of the Securities of the series including the form of the certificate of authentication for such series;
(5) the
applicability of any guarantees;
(6) whether
or not the Securities will be secured or unsecured, and the terms of any secured debt;
(7) whether
the Securities rank as senior debt, senior subordinated debt, subordinated debt or any combination thereof, and the terms of any subordination;
(8) if
the price (expressed as a percentage of the aggregate principal amount thereof) at which such Securities will be issued is a price other
than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration of the maturity
thereof, or if applicable, the portion of the principal amount of such Securities that is convertible into another security or the method
by which any such portion shall be determined;
(9) the
interest rate or rates, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue,
the dates interest will be payable and the regular record dates for interest payment dates or the method for determining such dates;
(10) the
Company’s right, if any, to defer the payment of interest and the maximum length of any such deferral period;
(11)
if applicable, the date or dates after which, or the period or periods during which, and the price or prices at which, the
Company may at its option, redeem the series of Securities pursuant to any optional or provisional redemption provisions and the terms
of those redemption provisions;
(12)
the date or dates, if any, on which, and the price or prices at which the Company is obligated, pursuant to any mandatory sinking
fund or analogous fund provisions or otherwise, to redeem, or at the Securityholder’s option to purchase, the series of Securities
and the currency or currency unit in which the Securities are payable;
(13)
the denominations in which the Securities of the series shall be issuable, if other than denominations of one thousand U.S.
dollars ($1,000) or any integral multiple thereof;
(14)
any and all terms, if applicable, relating to any auction or remarketing of the Securities of that series and any security
for the obligations of the Company with respect to such Securities and any other terms which may be advisable in connection with the marketing
of Securities of that series;
(15)
whether the Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities; the
terms and conditions, if any, upon which such Global Security or Securities may be exchanged in whole or in part for other individual
Securities; and the Depositary for such Global Security or Securities;
(16)
if applicable, the provisions relating to conversion or exchange of any Securities of the series and the terms and conditions
upon which such Securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or how it
will be calculated and may be adjusted, any mandatory or optional (at the Company’s option or the holders’ option) conversion
or exchange features, the applicable conversion or exchange period and the manner of settlement for any conversion or exchange, which
may, without limitation, include the payment of cash as well as the delivery of securities;
(17)
if other than the full principal amount thereof, the portion of the principal amount of Securities of the series which shall
be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01;
(18)
additions to or changes in the covenants applicable to the series of Securities being issued, including, among others, the
consolidation, merger or sale covenant;
(19)
additions to or changes in the Events of Default with respect to the Securities and any change in the right of the Trustee
or the Securityholders to declare the principal, premium, if any, and interest, if any, with respect to such Securities to be due and
payable;
(20)
additions to or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance;
(21)
additions to or changes in the provisions relating to satisfaction and discharge of this Indenture;
(22)
additions to or changes in the provisions relating to the modification of this Indenture both with and without the consent
of Securityholders of Securities issued under this Indenture;
(23)
the currency of payment of Securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S.
dollars;
(24)
whether interest will be payable in cash or additional Securities at the Company’s or the Securityholders’ option
and the terms and conditions upon which the election may be made;
(25)
the terms and conditions, if any, upon which the Company shall pay amounts in addition to the stated interest, premium, if
any, and principal amounts of the Securities of the series to any Securityholder that is not a “United States person” for
federal tax purposes;
(26)
any restrictions on transfer, sale or assignment of the Securities of the series; and
(27)
any other specific terms, preferences, rights or limitations of, or restrictions on, the Securities, any other additions or
changes in the provisions of this Indenture, and any terms that may be required by us or advisable under applicable laws or regulations.
All Securities of any one series
shall be substantially identical except as may otherwise be provided in or pursuant to any such Board Resolution or in any indentures
supplemental hereto.
If any of the terms of the series
are established by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of such action shall be
certified by the secretary or an assistant secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officer’s
Certificate of the Company setting forth the terms of the series.
Securities of any particular
series may be issued at various times, with different dates on which the principal or any installment of principal is payable, with different
rates of interest, if any, or different methods by which rates of interest may be determined, with different dates on which such interest
may be payable and with different redemption dates.
Section 2.02
Form of Securities and Trustee’s Certificate.
The
Securities of any series and the Trustee’s certificate of authentication to be borne by such Securities shall be substantially of
the tenor and purport as set forth in one or more indentures supplemental hereto or as provided in a Board Resolution, and set forth in
an Officer’s Certificate, and they may have such letters, numbers or other marks of identification or designation and such legends
or endorsements printed, lithographed or engraved thereon as the Company may deem appropriate and as are not inconsistent with the provisions
of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any
rule or regulation of any securities exchange on which Securities of that series may be listed, or to conform to usage.
Section 2.03
Denominations: Provisions for Payment.
The
Securities shall be issuable as registered Securities and in the denominations of one thousand U.S. dollars ($1,000) or any integral multiple
thereof, subject to Section 2.01(a)(13). The Securities of a particular series shall bear interest payable on the dates and at the
rate specified with respect to that series. Subject to Section 2.01(a)(23), the principal of and the interest on the Securities of
any series, as well as any premium thereon in case of redemption or repurchase thereof prior to maturity, and any cash amount due upon
conversion or exchange thereof, shall be payable in the coin or currency of the United States of America that at the time is legal tender
for public and private debt, at the office or agency of the Company maintained for that purpose. Each Security shall be dated the date
of its authentication. Interest on the Securities shall be computed on the basis of a 360-day year composed of twelve 30-day months.
The
interest installment on any Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities
of that series shall be paid to the Person in whose name said Security (or one or more Predecessor Securities) is registered at the close
of business on the regular record date for such interest installment. In the event that any Security of a particular series or portion
thereof is called for redemption and the redemption date is subsequent to a regular record date with respect to any Interest Payment Date
and prior to such Interest Payment Date, interest on such Security will be paid upon presentation and surrender of such Security as provided
in Section 3.03.
Any
interest on any Security that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date for Securities
of the same series (herein called “Defaulted Interest”) shall forthwith cease to be payable to the registered holder on the
relevant regular record date by virtue of having been such holder; and such Defaulted Interest shall be paid by the Company, at its election,
as provided in clause (1) or clause (2) below:
(1) The
Company may make payment of any Defaulted Interest on Securities to the Persons in whose names such Securities (or their respective Predecessor
Securities) are registered in the Security Register at the close of business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: the Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Security and the date of the proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a special
record date for the payment of such Defaulted Interest which shall not be more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such special record date and, in the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the special record date therefor to be sent, to each Securityholder 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
sent as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such Securities (or their respective Predecessor
Securities) are registered in the Security Register on such special record date.
(2) The
Company may make payment of any Defaulted Interest on any Securities in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable
by the Trustee.
Unless
otherwise set forth in a Board Resolution or one or more indentures supplemental hereto establishing the terms of any series of Securities
pursuant to Section 2.01 hereof, the term “regular record date” as used in this Section with respect to a series
of Securities and any Interest Payment Date for such series shall mean either the fifteenth day of the month immediately preceding the
month in which an Interest Payment Date established for such series pursuant to Section 2.01 hereof shall occur, if such Interest
Payment Date is the first day of a month, or the first day of the month in which an Interest Payment Date established for such series
pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is the fifteenth day of a month, whether or not such date
is a Business Day.
Subject
to the foregoing provisions of this Section, each Security of a series delivered under this Indenture upon transfer of or in exchange
for or in lieu of any other Security of such series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried
by such other Security.
Section 2.04
Execution and Authentications.
The
Securities shall be signed on behalf of the Company by one of its Officers. Signatures may be in the form of a manual or facsimile signature.
The
Company may use the facsimile signature of any Person who shall have been an Officer (at the time of execution), notwithstanding the fact
that at the time the Securities shall be authenticated and delivered or disposed of such Person shall have ceased to be such an Officer
of the Company. The Securities may contain such notations, legends or endorsements required by law, stock exchange rule or usage.
Each Security shall be dated the date of its authentication by the Trustee.
A
Security shall not be valid until authenticated manually by an authorized signatory of the Trustee, or by an Authenticating Agent. Such
signature shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that
the holder is entitled to the benefits of this Indenture. At any time and from time to time after the execution and delivery of this Indenture,
the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with a written order
of the Company for the authentication and delivery of such Securities, signed by an Officer, and the Trustee in accordance with such written
order shall authenticate and deliver such Securities.
Upon
the Company’s delivery of any such authentication order to the Trustee at any time after the initial issuance of Securities under
this Indenture, the Trustee shall be provided with, and (subject to Sections 315(a) through 315(d) of the Trust Indenture Act)
shall be fully protected in relying upon, (1) an Opinion of Counsel or reliance letter and (2) an Officer’s Certificate
stating that all conditions precedent to the execution, authentication and delivery of such Securities are in conformity with the provisions
of this Indenture.
The
Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the
Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner that is not reasonably
acceptable to the Trustee.
Section 2.05
Registration of Transfer and Exchange.
(a) Securities
of any series may be exchanged upon presentation thereof at the office or agency of the Company designated for such purpose, for other
Securities of such series of authorized denominations, and for a like aggregate principal amount, upon payment of a sum sufficient to
cover any tax or other governmental charge in relation thereto, all as provided in this Section. In respect of any Securities so surrendered
for exchange, the Company shall execute, the Trustee shall authenticate and such office or agency shall deliver in exchange therefor the
Security or Securities of the same series that the Securityholder making the exchange shall be entitled to receive, bearing numbers not
contemporaneously outstanding.
(b) The
Company shall keep, or cause to be kept, at its office or agency designated for such purpose a register or registers (herein referred
to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall register
the Securities and the transfers of Securities as in this Article provided and which at all reasonable times shall be open for inspection
by the Trustee. The registrar for the purpose of registering Securities and transfer of Securities as herein provided shall be appointed
as authorized by Board Resolution or Supplemental Indenture (the “Security Registrar”).
Upon
surrender for transfer of any Security at the office or agency of the Company designated for such purpose, the Company shall execute,
the Trustee shall authenticate and such office or agency shall deliver in the name of the transferee or transferees a new Security or
Securities of the same series as the Security presented for a like aggregate principal amount.
The
Company initially appoints the Trustee as initial Security Registrar for each series of Securities.
All
Securities presented or surrendered for exchange or registration of transfer, as provided in this Section, shall be accompanied (if so
required by the Company or the Security Registrar) by a written instrument or instruments of transfer, in form satisfactory to the Company
or the Security Registrar, duly executed by the registered holder or by such holder’s duly authorized attorney in writing.
(c) Except
as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established
in one or more indentures supplemental to this Indenture, no service charge shall be made for any exchange or registration of transfer
of Securities, or issue of new Securities in case of partial redemption of any series or repurchase, conversion or exchange of less than
the entire principal amount of a Security, but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge in relation thereto, other than exchanges pursuant to Section 2.06, Section 3.03(b) and Section 9.04 not involving
any transfer.
(d) The
Company and the Security Registrar shall not be required (i) to issue, exchange or register the transfer of any Securities during
a period beginning at the opening of business 15 days before the day of the sending of a notice of redemption of less than all the Outstanding
Securities of the same series and ending at the close of business on the day of such sending, nor (ii) to register the transfer of
or exchange any Securities of any series or portions thereof called for redemption or surrendered for repurchase, but not validly withdrawn,
other than the unredeemed portion of any such Securities being redeemed in part or not surrendered for repurchase, as the case may be.
The provisions of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.
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.
Section 2.06
Temporary Securities.
Pending
the preparation of definitive Securities of any series, the Company may execute, and the Trustee shall authenticate and deliver, temporary
Securities (printed, lithographed or typewritten) of any authorized denomination. Such temporary Securities shall be substantially in
the form of the definitive Securities in lieu of which they are issued, but with such omissions, insertions and variations as may be appropriate
for temporary Securities, all as may be determined by the Company. Every temporary Security of any series shall be executed by the Company
and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive
Securities of such series. Without unnecessary delay the Company will execute and will furnish definitive Securities of such series and
thereupon any or all temporary Securities of such series may be surrendered in exchange therefor (without charge to the Securityholders),
at the office or agency of the Company designated for the purpose, and the Trustee shall authenticate and such office or agency shall
deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of such series, unless
the Company advises the Trustee to the effect that definitive Securities need not be executed and furnished until further notice from
the Company. Until so exchanged, the temporary Securities of such series shall be entitled to the same benefits under this Indenture as
definitive Securities of such series authenticated and delivered hereunder.
Section 2.07
Mutilated, Destroyed, Lost or Stolen Securities.
In
case any temporary or definitive Security shall become mutilated or be destroyed, lost or stolen, the Company (subject to the next succeeding
sentence) shall execute, and upon the Company’s request the Trustee (subject as aforesaid) shall authenticate and deliver, a new
Security of the same series, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security,
or in lieu of and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security
shall furnish to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, and,
in every case of destruction, loss or theft, the applicant shall also furnish to the Company and the Trustee evidence to their satisfaction
of the destruction, loss or theft of the applicant’s Security and of the ownership thereof. The Trustee may authenticate any such
substituted Security and deliver the same upon the written request or authorization of any Officer of the Company. Upon the issuance of
any substituted Security, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
In
case any Security that has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead
of issuing a substitute Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated
Security) if the applicant for such payment shall furnish to the Company and the Trustee such security or indemnity as they may require
to save them harmless, and, in case of destruction, loss or theft, evidence to the satisfaction of the Company and the Trustee of the
destruction, loss or theft of such Security and of the ownership thereof.
Every
replacement Security issued pursuant to the provisions of this Section shall constitute an additional contractual obligation of the
Company whether or not the mutilated, destroyed, lost or stolen Security shall be found at any time, or be enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of the same series
duly issued hereunder. All Securities shall be held and owned upon the express condition that the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities, and shall preclude (to the extent lawful) any
and all other rights or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without their surrender.
Section 2.08
Cancellation.
All
Securities surrendered for the purpose of payment, redemption, repurchase, exchange, registration of transfer or conversion shall, if
surrendered to the Company or any paying agent (or any other applicable agent), be delivered to the Trustee for cancellation, or, if surrendered
to the Trustee, shall be cancelled by it, and no Securities shall be issued in lieu thereof except as expressly required or permitted
by any of the provisions of this Indenture. On request of the Company at the time of such surrender, the Trustee shall deliver to the
Company canceled Securities held by the Trustee. In the absence of such request the Trustee may dispose of canceled Securities in accordance
with its standard procedures and deliver a certificate of disposition to the Company. If the Company shall otherwise acquire any of the
Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are delivered to the Trustee for cancellation.
Section 2.09
Benefits of Indenture.
Nothing
in this Indenture or in the Securities, express or implied, shall give or be construed to give to any Person, other than the parties hereto
and the holders of the Securities, any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant,
condition or provision herein contained; all such covenants, conditions and provisions being for the sole benefit of the parties hereto
and of the holders of the Securities.
Section 2.10
Authenticating Agent.
So
long as any of the Securities of any series remain Outstanding there may be an Authenticating Agent for any or all such series of Securities
which the Trustee shall have the right to appoint. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, transfer or partial redemption, repurchase or conversion thereof, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. All references in this Indenture to the authentication of Securities by the Trustee shall be deemed to include authentication
by an Authenticating Agent for such series. Each Authenticating Agent shall be acceptable to the Company and shall be a corporation that
has a combined capital and surplus, as most recently reported or determined by it, sufficient under the laws of any jurisdiction under
which it is organized or in which it is doing business to conduct a trust business, and that is otherwise authorized under such laws to
conduct such business and is subject to supervision or examination by federal or state authorities. If at any time any Authenticating
Agent shall cease to be eligible in accordance with these provisions, it shall resign immediately.
Any
Authenticating Agent may at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may
at any time (and upon request by the Company shall) terminate the agency of any Authenticating Agent by giving written notice of termination
to such Authenticating Agent and to the Company. Upon resignation, termination or cessation of eligibility of any Authenticating Agent,
the Trustee may appoint an eligible successor Authenticating Agent acceptable to the Company. Any successor Authenticating Agent, upon
acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder as if
originally named as an Authenticating Agent pursuant hereto.
Section 2.11
Global Securities.
(a) If
the Company shall establish pursuant to Section 2.01 that the Securities of a particular series are to be issued as a Global Security,
then the Company shall execute and the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security
that (i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, all of the Outstanding
Securities of such series, (ii) shall be registered in the name of the Depositary or its nominee, (iii) shall be delivered by
the Trustee to the Depositary or pursuant to the Depositary’s instruction (or if the Depositary names the Trustee as its custodian,
retained by the Trustee), and (iv) shall bear a legend substantially to the following effect: “Except as otherwise provided
in Section 2.11 of the Indenture, this Security may be transferred, in whole but not in part, only to another nominee of the Depositary
or to a successor Depositary or to a nominee of such successor Depositary.”
(b) Notwithstanding
the provisions of Section 2.05, the Global Security of a series may be transferred, in whole but not in part and in the manner provided
in Section 2.05, only to another nominee of the Depositary for such series, or to a successor Depositary for such series selected
or approved by the Company or to a nominee of such successor Depositary.
(c) If
at any time the Depositary for a series of the Securities notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no longer be registered or in good standing under the Exchange
Act, or other applicable statute or regulation, and a successor Depositary for such series is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such condition, as the case may be, or if an Event of Default has occurred
and is continuing and the Company has received a request from the Depositary or from the Trustee, this Section 2.11 shall no longer
be applicable to the Securities of such series and the Company will execute, and subject to Section 2.04, the Trustee will authenticate
and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security. In addition,
the Company may at any time determine that the Securities of any series shall no longer be represented by a Global Security and that the
provisions of this Section 2.11 shall no longer apply to the Securities of such series. In such event the Company will execute and,
subject to Section 2.04, the Trustee, upon receipt of an Officer’s Certificate evidencing such determination by the Company,
will authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations,
and in an aggregate principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security.
Upon the exchange of the Global Security for such Securities in definitive registered form without coupons, in authorized denominations,
the Global Security shall be canceled by the Trustee. Such Securities in definitive registered form issued in exchange for the Global
Security pursuant to this Section 2.11(c) shall be registered in such names and in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Securities to the Depositary for delivery to the Persons in whose names such Securities are so registered.
Section 2.12
CUSIP Numbers.
The
Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP”
numbers in notices of redemption as a convenience to Securityholders; 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 or as contained in any notice of a redemption and that
reliance may be placed only on the other elements of identification printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify the Trustee of any change in the “CUSIP” numbers.
ARTICLE 3
REDEMPTION
OF SECURITIES AND SINKING FUND PROVISIONS
Section 3.01
Redemption.
The
Company may redeem the Securities of any series issued hereunder on and after the dates and in accordance with the terms established for
such series pursuant to Section 2.01 hereof.
Section 3.02
Notice of Redemption.
(a) In
case the Company shall desire to exercise such right to redeem all or, as the case may be, a portion of the Securities of any series in
accordance with any right the Company reserved for itself to do so pursuant to Section 2.01 hereof, the Company shall, or shall cause
the Trustee to, give notice of such redemption to holders of the Securities of such series to be redeemed by mailing, first class postage
prepaid (or with regard to any Global Security held in book entry form, by electronic mail in accordance with the applicable procedures
of the Depositary), a notice of such redemption not less than 30 days and not more than 90 days before the date fixed for redemption of
that series to such Securityholders, unless a shorter period is specified in the Securities to be redeemed. Any notice that is mailed
in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the registered holder receives the
notice. In any case, failure duly to give such notice to the holder of any Security of any series designated for redemption in whole or
in part, or any defect in the notice, shall not affect the validity of the proceedings for the redemption of any other Securities of such
series or any other series. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officer’s
Certificate evidencing compliance with any such restriction.
Each
such notice of redemption shall identify the Securities to be redeemed (including CUSIP numbers, if any), specify the date fixed for redemption
and the redemption price at which Securities of that series are to be redeemed, and shall state that payment of the redemption price of
such Securities to be redeemed will be made at the office or agency of the Company, upon presentation and surrender of such Securities,
that interest accrued to the date fixed for redemption will be paid as specified in said notice, that from and after said date interest
will cease to accrue and that the redemption is from a sinking fund, if such is the case. If less than all the Securities of a series
are to be redeemed, the notice to the holders of Securities of that series to be redeemed in part shall specify the particular Securities
to be so redeemed.
In
case any Security is to be redeemed in part only, the notice that relates to such Security shall state the portion of the principal amount
thereof to be redeemed, and shall state that on and after the redemption date, upon surrender of such Security, a new Security or Securities
of such series in principal amount equal to the unredeemed portion thereof will be issued.
(b) If
less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 45 days’ notice (unless
a shorter notice shall be satisfactory to the Trustee) in advance of the date fixed for redemption as to the aggregate principal amount
of Securities of the series to be redeemed, and thereupon the Securities to be redeemed shall be selected, by lot, on a pro rata basis,
or in such other manner as the Company shall deem appropriate and fair in its discretion and that may provide for the selection of a portion
or portions (equal to one thousand U.S. dollars ($1,000) or any integral multiple thereof) of the principal amount of such Securities
of a denomination larger than $1,000, the Securities to be redeemed and shall thereafter promptly notify the Company in writing of the
numbers of the Securities to be redeemed, in whole or in part. The Company may, if and whenever it shall so elect, by delivery of instructions
signed on its behalf by an Officer, instruct the Trustee or any paying agent to call all or any part of the Securities of a particular
series for redemption and to give notice of redemption in the manner set forth in this Section, such notice to be in the name of the Company
or its own name as the Trustee or such paying agent may deem advisable. In any case in which notice of redemption is to be given by the
Trustee or any such paying agent, the Company shall deliver or cause to be delivered to, or permit to remain with, the Trustee or such
paying agent, as the case may be, such Security Register, transfer books or other records, or suitable copies or extracts therefrom, sufficient
to enable the Trustee or such paying agent to give any notice by mail that may be required under the provisions of this Section.
Section 3.03
Payment Upon Redemption.
(a) If
the giving of notice of redemption shall have been completed as above provided, the Securities or portions of Securities of the series
to be redeemed specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to, but excluding, the date fixed for redemption and interest on such Securities or portions
of Securities shall cease to accrue on and after the date fixed for redemption, unless the Company shall default in the payment of such
redemption price and accrued interest with respect to any such Security or portion thereof. On presentation and surrender of such Securities
on or after the date fixed for redemption at the place of payment specified in the notice, said Securities shall be paid and redeemed
at the applicable redemption price for such series, together with interest accrued thereon to, but excluding, the date fixed for redemption
(but if the date fixed for redemption is an Interest Payment Date, the interest installment payable on such date shall be payable to the
registered holder at the close of business on the applicable record date pursuant to Section 2.03).
(b) Upon
presentation of any Security of such series that is to be redeemed in part only, the Company shall execute and the Trustee shall authenticate
and the office or agency where the Security is presented shall deliver to the Securityholder thereof, at the expense of the Company, a
new Security of the same series of authorized denominations in principal amount equal to the unredeemed portion of the Security so presented.
Section 3.04
Sinking Fund.
The
provisions of Sections 3.04, 3.05 and 3.06 shall be applicable to any sinking fund for the retirement of Securities of a series, except
as otherwise specified as contemplated by Section 2.01 for Securities of such series.
The
minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory
sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of any series is
herein referred to as an “optional sinking fund payment”. If provided for by the terms of Securities of any series, the cash
amount of any sinking fund payment may be subject to reduction as provided in Section 3.05. Each sinking fund payment shall be applied
to the redemption of Securities of any series as provided for by the terms of Securities of such series.
Section 3.05
Satisfaction of Sinking Fund Payments with Securities.
The
Company (i) may deliver Outstanding Securities of a series and (ii) may apply as a credit Securities of a series that have been
redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment
with respect to the Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms
of such series, provided that such Securities have not been previously so credited. Such Securities shall be received and credited for
such purpose by the Trustee at the redemption price specified in such Securities for redemption through operation of the sinking fund
and the amount of such sinking fund payment shall be reduced accordingly.
Section 3.06
Redemption of Securities for Sinking Fund.
Not
less than 45 days prior to each sinking fund payment date for any series of Securities (unless a shorter period shall be satisfactory
to the Trustee), the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of the series, the portion thereof, if any, that is to be satisfied by delivering and
crediting Securities of that series pursuant to Section 3.05 and the basis for such credit and will, together with such Officer’s
Certificate, deliver to the Trustee any Securities to be so delivered. Not less than 30 days before 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 3.02 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 3.02. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner
stated in Section 3.03.
ARTICLE 4
COVENANTS
Section 4.01
Payment of Principal, Premium and Interest.
The
Company will duly and punctually pay or cause to be paid the principal of (and premium, if any) and interest on the Securities of that
series at the time and place and in the manner provided herein and established with respect to such Securities. Payments of principal
on the Securities may be made at the time provided herein and established with respect to such Securities by U.S. dollar check drawn on
and mailed to the address of the Securityholder entitled thereto as such address shall appear in the Security Register, or U.S. dollar
wire transfer to a U.S. dollar account if such Securityholder shall have furnished wire instructions to the Trustee no later than 15 days
prior to the relevant payment date. Payments of interest on the Securities may be made at the time provided herein and established with
respect to such Securities by U.S. dollar check mailed to the address of the Securityholder entitled thereto as such address shall appear
in the Security Register, or U.S. dollar wire transfer to a U.S. dollar account if such Securityholder shall have furnished wire instructions
in writing to the Security Registrar and the Trustee no later than 15 days prior to the relevant payment date.
Section 4.02
Maintenance of Office or Agency.
So
long as any series of the Securities remain Outstanding, the Company agrees to maintain an office or agency with respect to each such
series and at such other location or locations as may be designated as provided in this Section 4.02, where (i) Securities of
that series may be presented for payment, (ii) Securities of that series may be presented as herein above authorized for registration
of transfer and exchange, and (iii) notices and demands to or upon the Company in respect of the Securities of that series and this
Indenture may be given or served, such designation to continue with respect to such office or agency until the Company shall, by written
notice signed by any Officer authorized to sign an Officer’s Certificate and delivered to the Trustee, designate some other office
or agency for such purposes or any of them. If at any time the Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, notices and demands.
The Company initially appoints the Corporate Trust Office of the Trustee as its paying agent with respect to the Securities.
Section 4.03
Paying Agents.
(a) If
the Company shall appoint one or more paying agents for all or any series of the Securities, other than the Trustee, the Company will
cause each such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject
to the provisions of this Section:
(1) that
it will hold all sums held by it as such agent for the payment of the principal of (and premium, if any) or interest on the Securities
of that series (whether such sums have been paid to it by the Company or by any other obligor of such Securities) in trust for the benefit
of the Persons entitled thereto;
(2) that
it will give the Trustee notice of any failure by the Company (or by any other obligor of such Securities) to make any payment of the
principal of (and premium, if any) or interest on the Securities of that series when the same shall be due and payable;
(3) that
it will, at any time during the continuance of any failure referred to in the preceding paragraph (a)(2) above, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent; and
(4) that
it will perform all other duties of paying agent as set forth in this Indenture.
(b) If
the Company shall act as its own paying agent with respect to any series of the Securities, it will on or before each due date of the
principal of (and premium, if any) or interest on Securities of that series, set aside, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay such principal (and premium, if any) or interest so becoming due on Securities of
that series until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee
of such action, or any failure (by it or any other obligor on such Securities) to take such action. Whenever the Company shall have one
or more paying agents for any series of Securities, it will, prior to each due date of the principal of (and premium, if any) or interest
on any Securities of that series, deposit with the paying agent a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless
such paying agent is the Trustee) the Company will promptly notify the Trustee of this action or failure so to act.
(c) Notwithstanding
anything in this Section to the contrary, (i) the agreement to hold sums in trust as provided in this Section is
subject to the provisions of Section 11.05, and (ii) the Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or direct any paying agent to pay, to the Trustee all
sums held in trust by the Company or such paying agent, such sums to be held by the Trustee upon the same terms and conditions as
those upon which such sums were held by the Company or such paying agent; and, upon such payment by the Company or any paying agent
to the Trustee, the Company or such paying agent shall be released from all further liability with respect to such money.
Section 4.04
Appointment to Fill Vacancy in Office of Trustee.
The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10,
a Trustee, so that there shall at all times be a Trustee hereunder.
ARTICLE 5
SECURITYHOLDERS’
LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 5.01
Company to Furnish Trustee Names and Addresses of Securityholders.
The
Company will furnish or cause to be furnished to the Trustee (a) within 15 days after each regular record date (as defined in Section 2.03)
a list, in such form as the Trustee may reasonably require, of the names and addresses of the holders of each series of Securities as
of such regular record date, provided that the Company shall not be obligated to furnish or cause to furnish such list at any time that
the list shall not differ in any respect from the most recent list furnished to the Trustee by the Company, and (b) at such other
times as the Trustee may request in writing within 30 days after the receipt by the Company of any such request, a list of similar form
and content as of a date not more than 15 days prior to the time such list is furnished; provided, however, that, in either case, no such
list need be furnished for any series for which the Trustee shall be the Security Registrar.
Section 5.02
Preservation Of Information; Communications With Securityholders.
(a) The
Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the holders
of Securities contained in the most recent list furnished to it as provided in Section 5.01 and as to the names and addresses of
holders of Securities received by the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b) The
Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders
may communicate as provided in Section 312(b) of the Trust Indenture Act with other Securityholders with respect to their rights
under this Indenture or under the Securities, and, in connection with any such communications, the Trustee shall satisfy its obligations
under Section 312(b) of the Trust Indenture Act in accordance with the provisions of Section 312(b) of the Trust Indenture
Act.
Section 5.03
Reports by the Company.
(a) The
Company will at all times comply with Section 314(a) of the Trust Indenture Act. The Company covenants and agrees to provide
(which delivery may be via electronic mail) to the Trustee within 30 days, after the Company files the same with the Commission, copies
of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission
may from time to time by rules and regulations prescribe) that the Company is required to file with the Commission pursuant to Section 13
or Section 15(d) of the Exchange Act; provided, however, the Company shall not be required to deliver to the Trustee any correspondence
filed with the Commission or any materials for which the Company has sought and received confidential treatment by the Commission; and
provided further, that so long as such filings by the Company are available on the Commission’s Electronic Data Gathering, Analysis
and Retrieval System (EDGAR), or any successor system, such filings shall be deemed to have been filed with the Trustee for purposes hereof
without any further action required by the Company. For the avoidance of doubt, a failure by the Company to file annual reports, information
and other reports with the Commission within the time period prescribed thereof by the Commission shall not be deemed a breach of this
Section 5.03.
(b) Delivery
of reports, information and documents to the Trustee under Section 5.03 is for informational purposes only and the information and
the Trustee’s receipt of the foregoing shall not constitute constructive notice of any information contained therein, or determinable
from information contained therein including the Company’s compliance with any of their covenants thereunder (as to which the Trustee
is entitled to rely exclusively on an Officer’s Certificate). The Trustee is under no duty to examine any such reports, information
or documents delivered to the Trustee or filed with the Commission via EDGAR to ensure compliance with the provision of this Indenture
or to ascertain the correctness or otherwise of the information or the statements contained therein. The Trustee shall have no responsibility
or duty whatsoever to ascertain or determine whether the above referenced filings with the Commission on EDGAR (or any successor system)
has occurred.
Section 5.04
Reports by the Trustee.
(a) If
required by Section 313(a) of the Trust Indenture Act, the Trustee, within sixty (60) days after each May 1, shall send
to the Securityholders a brief report dated as of such May 1, which complies with Section 313(a) of the Trust Indenture
Act.
(b) The
Trustee shall comply with Section 313(b) and 313(c) of the Trust Indenture Act.
(c) A
copy of each such report shall, at the time of such transmission to Securityholders, be filed by the Trustee with the Company, with each
securities exchange upon which any Securities are listed (if so listed) and also with the Commission. The Company agrees to notify the
Trustee when any Securities become listed on any securities exchange.
ARTICLE 6
REMEDIES
OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 6.01
Events of Default.
(a) Whenever
used herein with respect to Securities of a particular series, “Event of Default” means any one or more of the following events
that has occurred and is continuing:
(1) the
Company defaults in the payment of any installment of interest upon any of the Securities of that series, as and when the same shall become
due and payable, and such default continues for a period of 90 days; provided, however, that a valid extension of an interest payment
period by the Company in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment
of interest for this purpose;
(2) the
Company defaults in the payment of the principal of (or premium, if any, on) any of the Securities of that series as and when the same
shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by any sinking
or analogous fund established with respect to that series; provided, however, that a valid extension of the maturity of such Securities
in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment of principal or premium,
if any;
(3) the
Company fails to observe or perform any other of its covenants or agreements with respect to that series contained in this Indenture or
otherwise established with respect to that series of Securities pursuant to Section 2.01 hereof (other than a covenant or agreement
that has been expressly included in this Indenture solely for the benefit of one or more series of Securities other than such series)
for a period of 90 days after the date on which written notice of such failure, requiring the same to be remedied and stating that such
notice is a “Notice of Default” hereunder, shall have been given to the Company by the Trustee, by registered or certified
mail, or to the Company and the Trustee by the holders of at least 25% in principal amount of the Securities of that series at the time
Outstanding;
(4) the
Company pursuant to or within the meaning of any Bankruptcy Law (i) commences a voluntary case, (ii) consents to the entry of
an order for relief against it in an involuntary case, (iii) consents to the appointment of a Custodian of it or for all or substantially
all of its property or (iv) makes a general assignment for the benefit of its creditors; or
(5) a
court of competent jurisdiction enters an order under any Bankruptcy Law that (i) is for relief against the Company in an involuntary
case, (ii) appoints a Custodian of the Company for all or substantially all of its property or (iii) orders the liquidation
of the Company, and the order or decree remains unstayed and in effect for 90 days.
(b) In
each and every such case (other than an Event of Default specified in clause (4) or clause (5) above), unless the principal
of all the Securities of that series shall have already become due and payable, either the Trustee or the holders of not less than 25%
in aggregate principal amount of the Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to
the Trustee if given by such Securityholders), may declare the principal of (and premium, if any, on) and accrued and unpaid interest
on all the Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall
be immediately due and payable. If an Event of Default specified in clause (4) or clause (5) above occurs, the principal of
and accrued and unpaid interest on all the Securities of that series shall automatically be immediately due and payable without any declaration
or other act on the part of the Trustee or the holders of the Securities.
(c) At
any time after the principal of (and premium, if any, on) and accrued and unpaid interest on the Securities of that series shall have
been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered
as hereinafter provided, the holders of a majority in aggregate principal amount of the Securities of that series then Outstanding hereunder,
by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (i) the Company
has paid or deposited with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of that series
and the principal of (and premium, if any, on) any and all Securities of that series that shall have become due otherwise than by acceleration
(with interest upon such principal and premium, if any, and, to the extent that such payment is enforceable under applicable law, upon
overdue installments of interest, at the rate per annum expressed in the Securities of that series to the date of such payment or deposit)
and the amount payable to the Trustee under Section 7.06, and (ii) any and all Events of Default under the Indenture with respect
to such series, other than the nonpayment of principal on (and premium, if any, on) and accrued and unpaid interest on Securities of that
series that shall not have become due by their terms, shall have been remedied or waived as provided in Section 6.06.
No
such rescission and annulment shall extend to or shall affect any subsequent default or impair any right consequent thereon.
(d) In
case the Trustee shall have proceeded to enforce any right with respect to Securities of that series under this Indenture and such proceedings
shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case, subject to any determination in such proceedings, the Company and the Trustee shall
be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Company and the Trustee
shall continue as though no such proceedings had been taken.
Section 6.02
Collection of Indebtedness and Suits for Enforcement by Trustee.
(a) The
Company covenants that (i) in case it shall default in the payment of any installment of interest on any of the Securities of a series,
or in any payment required by any sinking or analogous fund established with respect to that series as and when the same shall have become
due and payable, and such default shall have continued for a period of 90 days, or (ii) in case it shall default in the payment of
the principal of (or premium, if any, on) any of the Securities of a series when the same shall have become due and payable, whether upon
maturity of the Securities of a series or upon redemption or upon declaration or otherwise then, upon demand of the Trustee, the Company
will pay to the Trustee, for the benefit of the holders of the Securities of that series, the whole amount that then shall have been become
due and payable on all such Securities for principal (and premium, if any) or interest, or both, as the case may be, with interest upon
the overdue principal (and premium, if any) and (to the extent that payment of such interest is enforceable under applicable law) upon
overdue installments of interest at the rate per annum expressed in the Securities of that series; and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection, and the amount payable to the Trustee under Section 7.06.
(b) If
the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid,
and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against
the Company or other obligor upon the Securities of that series and collect the moneys adjudged or decreed to be payable in the manner
provided by law or equity out of the property of the Company or other obligor upon the Securities of that series, wherever situated.
(c) In
case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial proceedings
affecting the Company, or its creditors or property, the Trustee shall have power to intervene in such proceedings and take any action
therein that may be permitted by the court and shall (except as may be otherwise provided by law) be entitled to file such proofs of claim
and other papers and documents as may be necessary or advisable in order to have the claims of the Trustee and of the holders of Securities
of such series allowed for the entire amount due and payable by the Company under the Indenture at the date of institution of such proceedings
and for any additional amount that may become due and payable by the Company after such date, and to collect and receive any moneys or
other property payable or deliverable on any such claim, and to distribute the same after the deduction of the amount payable to the Trustee
under Section 7.06; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of the holders
of Securities of such series to make such payments to the Trustee, and, in the event that the Trustee shall consent to the making of such
payments directly to such Securityholders, to pay to the Trustee any amount due it under Section 7.06.
(d) All
rights of action and of asserting claims under this Indenture, or under any of the terms established with respect to Securities of that
series, may be enforced by the Trustee without the possession of any of such Securities, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of
an express trust, and any recovery of judgment shall, after provision for payment to the Trustee of any amounts due under Section 7.06,
be for the ratable benefit of the holders of the Securities of such series.
In
case of an Event of Default hereunder, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights,
either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained
in the Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested
in the Trustee by this Indenture or by law.
Nothing
contained herein shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting the Securities of that series or the rights of any Securityholder
thereof or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
Section 6.03
Application of Moneys Collected.
Any
moneys collected by the Trustee pursuant to this Article with respect to a particular series of Securities shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal (or
premium, if any) or interest, upon presentation of the Securities of that series, and notation thereon of the payment, if only partially
paid, and upon surrender thereof if fully paid:
FIRST:
To the payment of costs and expenses of collection and of all amounts payable to the Trustee under Section 7.06;
SECOND:
To the payment of the amounts then due and unpaid upon Securities of such series for principal (and premium, if any) and interest, in
respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal (and premium, if any) and interest, respectively; and
THIRD:
To the payment of the remainder, if any, to the Company or any other Person lawfully entitled thereto.
Section 6.04
Limitation on Suits.
No
holder of any Security of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any
suit, action or proceeding in equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless (i) such Securityholder previously shall have given to the Trustee written notice
of an Event of Default and of the continuance thereof with respect to the Securities of such series specifying such Event of Default,
as hereinbefore provided; (ii) the holders of not less than 25% in aggregate principal amount of the Securities of such series then
Outstanding shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder;
(iii) such Securityholder or Securityholders shall have offered to the Trustee indemnity satisfactory to it against the costs, expenses
and liabilities to be incurred in compliance with such request; (iv) the Trustee for 90 days after its receipt of such notice, request
and offer of indemnity, shall have failed to institute any such action, suit or proceeding; and (v) during such 90 day period, the
holders of a majority in principal amount of the Securities of that series do not give the Trustee a direction inconsistent with the request.
Notwithstanding
anything contained herein to the contrary or any other provisions of this Indenture, the right of any holder of any Security to receive
payment of the principal of (and premium, if any) and interest on such Security, as therein provided, on or after the respective due dates
expressed in such Security (or in the case of redemption, on the redemption date), or to institute suit for the enforcement of any such
payment on or after such respective dates or redemption date, shall not be impaired or affected without the consent of such holder and
by accepting a Security hereunder it is expressly understood, intended and covenanted by the taker and holder of every Security of such
series with every other such taker and holder and the Trustee, that no one or more holders of Securities of such series shall have any
right in any manner whatsoever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights
of the holders of any other of such Securities, or to obtain or seek to obtain priority over or preference to any other such holder, or
to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all holders
of Securities of such series. For the protection and enforcement of the provisions of this Section, each and every Securityholder and
the Trustee shall be entitled to such relief as can be given either at law or in equity.
Section 6.05
Rights and Remedies Cumulative; Delay or Omission Not Waiver.
(a) Except
as otherwise provided in Section 2.07, all powers and remedies given by this Article to the Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive of any other powers and remedies available to the Trustee
or the holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture or otherwise established with respect to such Securities.
(b) No
delay or omission of the Trustee or of any holder of any of the Securities to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such default or
an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by this Article or by
law to the Trustee or the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee
or by the Securityholders.
Section 6.06
Control by Securityholders.
The
holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding, determined in accordance
with Section 8.04, shall have the right to direct the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on the Trustee with respect to such series; provided, however, that such direction
shall not be in conflict with any rule of law or with this Indenture or subject the Trustee in its sole discretion to personal liability.
Subject to the provisions of Section 7.01, the Trustee shall have the right to decline to follow any such direction if the Trustee
in good faith shall, by a Responsible Officer or officers of the Trustee, determine that the proceeding so directed, subject to the Trustee’s
duties under the Trust Indenture Act, would involve the Trustee in personal liability or might be unduly prejudicial to the Securityholders
not involved in the proceeding. The holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding
affected thereby, determined in accordance with Section 8.04, may on behalf of the holders of all of the Securities of such series
waive any past default in the performance of any of the covenants contained herein or established pursuant to Section 2.01 with respect
to such series and its consequences, except a default in the payment of the principal of, or premium, if any, or interest on any of the
Securities of that series as and when the same shall become due by the terms of such Securities otherwise than by acceleration (unless
such default has been cured and a sum sufficient to pay all matured installments of interest and principal and any premium has been deposited
with the Trustee (in accordance with Section 6.01(c))). Upon any such waiver, the default covered thereby shall be deemed to be cured
for all purposes of this Indenture and the Company, the Trustee and the holders of the Securities of such series shall be restored to
their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
Section 6.07
Undertaking to Pay Costs.
All
parties to this Indenture agree, and each holder of any Securities by such holder’s acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking
to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made
by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted
by any Securityholder, or group of Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities
of any series, or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of (or premium, if
any) or interest on any Security of such series, on or after the respective due dates expressed in such Security or established pursuant
to this Indenture.
ARTICLE 7
CONCERNING
THE TRUSTEE
Section 7.01
Certain Duties and Responsibilities of Trustee.
(a) The
Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing of all Events
of Default with respect to the Securities of that series that may have occurred, shall undertake to perform with respect to the Securities
of such series such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants shall be read
into this Indenture against the Trustee. In case an Event of Default with respect to the Securities of a series has occurred (that has
not been cured or waived), the Trustee shall exercise with respect to Securities of that series such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his or her own affairs.
(b) No
provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(1) prior
to the occurrence of an Event of Default with respect to the Securities of a series and after the curing or waiving of all such Events
of Default with respect to that series that may have occurred:
(A) the
duties and obligations of the Trustee shall with respect to the Securities of such series be determined solely by the express provisions
of this Indenture, and the Trustee shall not be liable with respect to the Securities of such series except for the performance of such
duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(B) in
the absence of bad faith on the part of the Trustee, the Trustee may with respect to the Securities of such series conclusively rely,
as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions that by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture;
(2) the
Trustee shall not be liable to any Securityholder or to any other Person for any error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the
Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction
of the holders of not less than a majority in principal amount of the Securities of any series at the time Outstanding relating to the
time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee under this Indenture with respect to the Securities of that series;
(4) none
of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of its rights or powers if there is reasonable ground for
believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Indenture or adequate
indemnity against such risk is not reasonably assured to it;
(5) the
Trustee shall not be required to give any bond or surety in respect of the performance of its powers or duties hereunder;
(6) the
permissive right of the Trustee to do things enumerated in this Indenture shall not be construed as a duty of the Trustee; and
(7) no
Trustee shall have any duty or responsibility for any act or omission of any other Trustee appointed with respect to a series of Securities
hereunder.
Section 7.02
Certain Rights of Trustee.
Except
as otherwise provided in Section 7.01:
(a) The
Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, security or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(b) Any
request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution or an instrument
signed in the name of the Company by any authorized Officer of the Company (unless other evidence in respect thereof is specifically prescribed
herein);
(c) The
Trustee may consult with counsel and the opinion or written advice of such counsel or, if requested, any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken or suffered or omitted hereunder in good faith and in reliance
thereon;
(d) The
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction
of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee
security or indemnity reasonably acceptable to the Trustee against the costs, expenses and liabilities that may be incurred therein or
thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default with
respect to a series of the Securities (that has not been cured or waived), to exercise with respect to Securities of that series such
of the rights and powers vested in it by this Indenture, and to use the same degree of care and skill in their exercise, as a prudent
man would exercise or use under the circumstances in the conduct of his or her own affairs;
(e) The
Trustee shall not be liable for any action taken or omitted to be taken by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture;
(f) The
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, security, or other papers or documents or inquire as to the performance
by the Company of one of its covenants under this Indenture, unless requested in writing so to do by the holders of not less than a majority
in principal amount of the Outstanding Securities of the particular series affected thereby (determined as provided in Section 8.04);
provided, however, that if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred
by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded
to it by the terms of this Indenture, the Trustee may require security or indemnity reasonably acceptable to the Trustee against such
costs, expenses or liabilities as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the
Company or, if paid by the Trustee, shall be repaid by the Company upon demand;
(g) The
Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys
and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care
by it hereunder;
(h) 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, 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 resume performance as soon as practicable under the circumstances;
(i) 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;
(j) The
Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission
or other similar unsecured electronic methods; provided, however, that such instructions or directions shall be signed by an authorized
representative of the party providing such instructions or directions. If the party elects to give the Trustee e-mail or facsimile instructions
(or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s
understanding of such instructions 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 instructions notwithstanding such instructions
conflict or are inconsistent with a subsequent written instruction. The party providing electronic instructions agrees to assume all risks
arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the
risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties. The Trustee may request
that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at
such time to furnish the Trustee with Officer’s Certificates, Company notices and any other matters or directions pursuant to this
Indenture;
(k) 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 under the Securities, and each agent,
custodian or other person employed to act under this Indenture; and
(l) The
Trustee shall not be deemed to have knowledge of any Default or Event of Default (other than an Event of Default constituting the failure
to pay the interest on, or the principal of, the Securities if the Trustee also serves as the paying agent for such Securities) until
the Trustee shall have received written notification in the manner set forth in this Indenture or a Responsible Officer of the Trustee
shall have obtained actual knowledge.
Section 7.03
Trustee Not Responsible for Recitals or Issuance or Securities.
(a) The
recitals contained herein and in the Securities shall be taken as the statements of the Company, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee shall not be responsible for any statement in any registration statement, prospectus, or
any other document in connection with the sale of Securities. The Trustee shall not be responsible for any rating on the Securities or
any action or omission of any rating agency.
(b) The
Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities.
(c) The
Trustee shall not be accountable for the use or application by the Company of any of the Securities or of the proceeds of such Securities,
or for the use or application of any moneys paid over by the Trustee in accordance with any provision of this Indenture or established
pursuant to Section 2.01, or for the use or application of any moneys received by any paying agent other than the Trustee.
Section 7.04
May Hold Securities.
The
Trustee or any paying agent or Security Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not Trustee, paying agent or Security Registrar.
Section 7.05
Moneys Held in Trust.
Subject
to the provisions of Section 11.05, all moneys received by the Trustee shall, until used or applied as herein provided, be held in
trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any moneys received by it hereunder except such as it may agree with the Company
to pay thereon.
Section 7.06
Compensation and Reimbursement.
(a) The
Company shall pay to the Trustee for each of its capacities hereunder from time to time compensation for its services as the Company and
the Trustee shall from time to time agree upon in writing. The Trustee’s compensation shall not be limited by any law on compensation
of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred
by it. Such expenses shall include the reasonable compensation and expenses of the Trustee’s agents and counsel.
(b) The
Company shall indemnify the Trustee in each of its capacities hereunder against any loss, liability or expense (including the cost of
defending itself and including the reasonable compensation and expenses of the Trustee’s agents and counsel) incurred by it except
as set forth in Section 7.06(c) in the exercise or performance of its powers, rights or duties under this Indenture as Trustee
or Authenticating Agent. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. The Company shall
defend the claim and the Trustee shall cooperate in the defense. The Trustee may have one separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent, which consent shall
not be unreasonably withheld. This indemnification shall apply to officers, directors, employees, shareholders and agents of the Trustee.
(c) The
Company need not reimburse any expense or indemnify against any loss or liability incurred by the Trustee or by any officer, director,
employee, shareholder or agent of the Trustee through negligence or bad faith.
(d) To
ensure the Company’s payment obligations in this Section, the Trustee shall have a lien prior to the Securities on all funds or
property held or collected by the Trustee, except that held in trust to pay principal of or interest on particular Securities. When the
Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 6.01(a)(4) or (5), the
expenses (including the reasonable fees and expenses of its counsel) and the compensation for services in connection therewith are to
constitute expenses of administration under any bankruptcy law. The provisions of this Section 7.06 shall survive the termination
of this Indenture and the resignation or removal of the Trustee.
Section 7.07
Reliance on Officer’s Certificate.
Except
as otherwise provided in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem
it reasonably necessary or desirable that a matter be proved or established prior to taking or suffering or omitting to take any action
hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence
or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate delivered
to the Trustee and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken, suffered or omitted to be taken by it under the provisions of this Indenture upon the faith thereof.
Section 7.08
Disqualification; Conflicting Interests.
If
the Trustee has or shall acquire any “conflicting interest” within the meaning of Section 310(b) of the Trust Indenture
Act, the Trustee and the Company shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section 7.09
Corporate Trustee Required; Eligibility.
There
shall at all times be a Trustee with respect to the Securities issued hereunder which shall at all times be a corporation organized and
doing business under the laws of the United States of America or any state or territory thereof or of the District of Columbia, or a corporation
or other Person permitted to act as trustee by the Commission, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision or examination by federal,
state, territorial, or District of Columbia authority.
If
such corporation or other Person publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation or other
Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. The Company
may not, nor may any Person directly or indirectly controlling, controlled by, or under common control with the Company, serve as Trustee.
In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.10.
Section 7.10
Resignation and Removal; Appointment of Successor.
(a) The
Trustee or any successor hereafter appointed may at any time resign with respect to the Securities of one or more series by giving written
notice thereof to the Company and the Securityholders of such series. Upon receiving such notice of resignation, the Company shall promptly
appoint a successor trustee with respect to Securities of such series by written instrument, in duplicate, executed by order of the Board
of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor
trustee shall have been so appointed and have accepted appointment within 30 days after the sending of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee with respect to Securities
of such series, or any Securityholder of that series who has been a bona fide holder of a Security or Securities for at least six months
may on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court
may thereupon after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In
case at any time any one of the following shall occur:
(1) the
Trustee shall fail to comply with the provisions of Section 7.08 after written request therefor by the Company or by any Securityholder
who has been a bona fide holder of a Security or Securities for at least six months; or
(2) the
Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 and shall fail to resign after written request
therefor by the Company or by any such Securityholder; or
(3) the
Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding,
or a receiver of the Trustee or of its property shall be appointed or consented to, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;
then,
in any such case, the Company may remove the Trustee with respect to all Securities and appoint a successor trustee by written instrument,
in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and
one copy to the successor trustee, or any Securityholder who has been a bona fide holder of a Security or Securities for at least six
months may, on behalf of that holder and all others similarly situated, petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(c) The
holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may at any time remove the
Trustee with respect to such series by so notifying the Trustee and the Company and may appoint a successor trustee for such series with
the consent of the Company.
(d) Any
resignation or removal of the Trustee and appointment of a successor trustee with respect to the Securities of a series pursuant to any
of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.11.
(e) Any
successor trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more series or all
of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series.
Section 7.11
Acceptance of Appointment By Successor.
(a) In
case of the appointment hereunder of a successor trustee with respect to all Securities, every such successor trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such successor trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the
successor trustee, such retiring Trustee shall, upon payment of any amounts due to it pursuant to the provisions of Section 7.06,
execute and deliver an instrument transferring to such successor trustee all the rights, powers, and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor trustee all property and money held by such retiring Trustee hereunder.
(b) In
case of the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor trustee with respect to the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor trustee shall accept such appointment and which (i) shall contain such provisions as shall
be necessary or desirable to transfer and confirm to, and to vest in, each successor trustee all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor trustee relates,
(ii) shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee
and that no Trustee shall be responsible for any act or failure to act on the part of any other Trustee hereunder; and upon the execution
and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided
therein, such retiring Trustee shall with respect to the Securities of that or those series to which the appointment of such successor
trustee relates have no further responsibility for the exercise of rights and powers or for the performance of the duties and obligations
vested in the Trustee under this Indenture, and each such successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor trustee relates; but, on request of the Company or any successor trustee, such retiring Trustee
shall duly assign, transfer and deliver to such successor trustee, to the extent contemplated by such supplemental indenture, the property
and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such
successor trustee relates.
(c) Upon
request of any such successor trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming
to such successor trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case
may be.
(d) No
successor trustee shall accept its appointment unless at the time of such acceptance such successor trustee shall be qualified and eligible
under this Article.
(e) Upon
acceptance of appointment by a successor trustee as provided in this Section, the Company shall send notice of the succession of such
trustee hereunder to the Securityholders. If the Company fails to transmit such notice within ten days after acceptance of appointment
by the successor trustee, the successor trustee shall cause such notice to be transmitted at the expense of the Company.
Section 7.12
Merger, Conversion, Consolidation or Succession to Business.
Any
corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all
the corporate trust business of the Trustee, including the administration of the trust created by this Indenture, shall be the successor
of the Trustee hereunder, provided that such corporation shall be qualified under the provisions of Section 7.08 and eligible under
the provisions of Section 7.09, without the execution or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 7.13
Preferential Collection of Claims Against the Company.
The
Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of
the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture
Act to the extent included therein.
Section 7.14
Notice of Default.
If
any Event of Default occurs and is continuing and if such Event of Default is known to a Responsible Officer of the Trustee, the Trustee
shall send to each Securityholder in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act notice
of the Event of Default within the earlier of 90 days after it occurs and 30 days after it is known to a Responsible Officer of the Trustee
or written notice of it is received by the Trustee, unless such Event of Default has been cured; provided, however, that, except
in the case of a default in the payment of the principal of (or premium, if any) or interest on any Security, the Trustee shall be protected
in withholding such notice if and so long as the Responsible Officers of the Trustee in good faith determine that the withholding of such
notice is in the interest of the Securityholders.
ARTICLE 8
CONCERNING
THE SECURITYHOLDERS
Section 8.01
Evidence of Action by Securityholders.
Whenever
in this Indenture it is provided that the holders of a majority or specified percentage in aggregate principal amount of the Securities
of a particular series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver
or the taking of any other action), the fact that at the time of taking any such action the holders of such majority or specified percentage
of that series have joined therein may be evidenced by any instrument or any number of instruments of similar tenor executed by such holders
of Securities of that series in person or by agent or proxy appointed in writing.
If the Company shall solicit
from the Securityholders of any series any request, demand, authorization, direction, notice, consent, waiver or other action, the Company
may, at its option, as evidenced by an Officer’s Certificate, fix in advance a record date for such series for the determination
of Securityholders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action, but the Company
shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver
or other action may be given before or after the record date, but only the Securityholders of record at the close of business on the record
date shall be deemed to be Securityholders for the purposes of determining whether Securityholders of the requisite proportion of Outstanding
Securities of that series have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver
or other action, and for that purpose the Outstanding Securities of that series shall be computed as of the record date; provided, however,
that no such authorization, agreement or consent by such Securityholders on the record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later than six months after the record date.
Section 8.02
Proof of Execution by Securityholders.
Subject
to the provisions of Section 7.01, proof of the execution of any instrument by a Securityholder (such proof will not require notarization)
or his or her agent or proxy and proof of the holding by any Person of any of the Securities shall be sufficient if made in the following
manner:
(a) The
fact and date of the execution by any such Person of any instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The
ownership of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security Registrar thereof.
The
Trustee may require such additional proof of any matter referred to in this Section as it shall deem necessary.
Section 8.03
Who May be Deemed Owners.
Prior
to the due presentment for registration of transfer of any Security, the Company, the Trustee, any paying agent and any Security Registrar
may deem and treat the Person in whose name such Security shall be registered upon the books of the Security Registrar as the absolute
owner of such Security (whether or not such Security shall be overdue and notwithstanding any notice of ownership or writing thereon made
by anyone other than the Security Registrar) for the purpose of receiving payment of or on account of the principal of, premium, if any,
and (subject to Section 2.03) interest on such Security and for all other purposes; and neither the Company nor the Trustee nor any
paying agent nor any Security Registrar shall be affected by any notice to the contrary.
Section 8.04
Certain Securities Owned by Company Disregarded.
In
determining whether the holders of the requisite aggregate principal amount of Securities of a particular series have concurred in any
direction, consent or waiver under this Indenture, the Securities of that series that are owned by the Company or any other obligor on
the Securities of that series or by any Person directly or indirectly controlling or controlled by or under common control with the Company
or any other obligor on the Securities of that series shall be disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent
or waiver, only Securities of such series that the Trustee actually knows are so owned shall be so disregarded. The Securities so owned
that have been pledged in good faith may be regarded as Outstanding for the purposes of this Section, if the pledgee shall establish to
the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not a Person
directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any such other obligor.
In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.
Section 8.05
Actions Binding on Future Securityholders.
At
any time prior to (but not after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the
holders of the majority or percentage in aggregate principal amount of the Securities of a particular series specified in this Indenture
in connection with such action, any holder of a Security of that series that is shown by the evidence to be included in the Securities
the holders of which have consented to such action may, by filing written notice with the Trustee, and upon proof of holding as provided
in Section 8.02, revoke such action so far as concerns such Security. Except as aforesaid any such action taken by the holder of
any Security shall be conclusive and binding upon such holder and upon all future holders and owners of such Security, and of any Security
issued in exchange therefor, on registration of transfer thereof or in place thereof, irrespective of whether or not any notation in regard
thereto is made upon such Security. Any action taken by the holders of the majority or percentage in aggregate principal amount of the
Securities of a particular series specified in this Indenture in connection with such action shall be conclusively binding upon the Company,
the Trustee and the holders of all the Securities of that series.
ARTICLE 9
SUPPLEMENTAL
INDENTURES
Section 9.01
Supplemental Indentures Without the Consent of Securityholders.
In
addition to any supplemental indenture otherwise authorized by this Indenture, the Company and the Trustee may from time to time and at
any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as
then in effect), without the consent of the Securityholders, for one or more of the following purposes:
(a) to
cure any ambiguity, defect, or inconsistency herein or in the Securities of any series;
(b) to
comply with Article 10;
(c) to
provide for uncertificated Securities in addition to or in place of certificated Securities;
(d) to
add to the covenants, restrictions, conditions or provisions relating to the Company for the benefit of the holders of all or any series
of Securities (and if such covenants, restrictions, conditions or provisions are to be for the benefit of less than all series of Securities,
stating that such covenants, restrictions, conditions or provisions are expressly being included solely for the benefit of such series),
to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions
or provisions an Event of Default, or to surrender any right or power herein conferred upon the Company;
(e) to
add to, delete from, or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication,
and delivery of Securities, as herein set forth;
(f) to
make any change that does not adversely affect the rights of any Securityholder in any material respect;
(g) to
provide for the issuance of and establish the form and terms and conditions of the Securities of any series as provided in Section 2.01,
to establish the form of any certifications required to be furnished pursuant to the terms of this Indenture or any series of Securities,
or to add to the rights of the holders of any series of Securities;
(h) to
evidence and provide for the acceptance of appointment hereunder by a successor trustee; or
(i) to
comply with any requirements of the Commission or any successor in connection with the qualification of this Indenture under the Trust
Indenture Act.
The
Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental
indenture that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Any
supplemental indenture authorized by the provisions of this Section may be executed by the Company and the Trustee without the consent
of the holders of any of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 9.02.
Section 9.02
Supplemental Indentures With Consent of Securityholders.
With
the consent (evidenced as provided in Section 8.01) of the holders of not less than a majority in aggregate principal amount of the
Securities of each series affected by such supplemental indenture or indentures at the time Outstanding, the Company, when authorized
by a Board Resolution, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act as then in effect) for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner not
covered by Section 9.01 the rights of the holders of the Securities of such series under this Indenture; provided, however, that
no such supplemental indenture shall, without the consent of the holders of each Security then Outstanding and affected thereby, (a) extend
the fixed maturity of any Securities of any series, or reduce the principal amount thereof, or reduce the rate or extend the time of payment
of interest thereon, or reduce any premium payable upon the redemption thereof or (b) reduce the aforesaid percentage of Securities,
the holders of which are required to consent to any such supplemental indenture.
It
shall not be necessary for the consent of the Securityholders of any series affected thereby under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Section 9.03
Effect of Supplemental Indentures.
Upon
the execution of any supplemental indenture pursuant to the provisions of this Article or of Section 10.01, this Indenture shall,
with respect to such series, be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations
of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and the holders of Securities of the series
affected thereby shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
Section 9.04
Securities Affected by Supplemental Indentures.
Securities
of any series affected by a supplemental indenture, authenticated and delivered after the execution of such supplemental indenture pursuant
to the provisions of this Article or of Section 10.01, may bear a notation in form approved by the Company, provided such form
meets the requirements of any securities exchange upon which such series may be listed, as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of that series so modified as to conform, in the opinion of the Board of
Directors, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated
by the Trustee and delivered in exchange for the Securities of that series then Outstanding.
Section 9.05
Execution of Supplemental Indentures.
Upon
the request of the Company, accompanied by its Board Resolutions authorizing the execution of any such supplemental indenture, and upon
the filing with the Trustee of evidence of the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall
join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own
rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be obligated
to enter into such supplemental indenture. The Trustee, subject to the provisions of Section 7.01, shall receive an Officer’s
Certificate or an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article is
authorized or permitted by the terms of this Article and that all conditions precedent to the execution of the supplemental indenture
have been complied with; provided, however, that such Officer’s Certificate or Opinion of Counsel need not be provided in connection
with the execution of a supplemental indenture that establishes the terms of a series of Securities pursuant to Section 2.01 hereof.
Promptly
after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Company
shall (or shall direct the Trustee to) send a notice, setting forth in general terms the substance of such supplemental indenture, to
the Securityholders of all series affected thereby as their names and addresses appear upon the Security Register. Any failure of the
Company to send, or cause the sending of, such notice, or any defect therein, shall not, however, in any way impair or affect the validity
of any such supplemental indenture.
ARTICLE 10
SUCCESSOR
ENTITY
Section 10.01
Company May Consolidate, Etc.
Nothing
contained in this Indenture shall prevent any consolidation or merger of the Company with or into any other Person (whether or not affiliated
with the Company) or successive consolidations or mergers in which the Company or its successor or successors shall be a party or parties,
or shall prevent any sale, conveyance, transfer or other disposition of the property of the Company or its successor or successors as
an entirety, or substantially as an entirety, to any other Person (whether or not affiliated with the Company or its successor or successors);
provided, however, the Company hereby covenants and agrees that, upon any such consolidation or merger (in each case, if the Company is
not the survivor of such transaction) or any such sale, conveyance, transfer or other disposition (other than a sale, conveyance, transfer
or other disposition to a Subsidiary of the Company), the due and punctual payment of the principal of (and premium, if any) and interest
on all of the Securities of all series in accordance with the terms of each series, according to their tenor, and the due and punctual
performance and observance of all the covenants and conditions of this Indenture with respect to each series or established with respect
to such series pursuant to Section 2.01 to be kept or performed by the Company shall be expressly assumed, by supplemental indenture
(which shall conform to the provisions of the Trust Indenture Act, as then in effect) reasonably satisfactory in form to the Trustee executed
and delivered to the Trustee by the entity formed by such consolidation, or into which the Company shall have been merged, or by the entity
which shall have acquired such property.
Section 10.02
Successor Entity Substituted.
(a) In
case of any such consolidation, merger, sale, conveyance, transfer or other disposition and upon the assumption by the successor entity
by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the obligations set forth
under Section 10.01 on all of the Securities of all series Outstanding, such successor entity shall succeed to and be substituted
for the Company with the same effect as if it had been named as the Company herein, and thereupon the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and the Securities.
(b) In
case of any such consolidation, merger, sale, conveyance, transfer or other disposition, such changes in phraseology and form (but not
in substance) may be made in the Securities thereafter to be issued as may be appropriate.
(c) Nothing
contained in this Article shall require any action by the Company in the case of a consolidation or merger of any Person into the
Company where the Company is the survivor of such transaction, or the acquisition by the Company, by purchase or otherwise, of all or
any part of the property of any other Person (whether or not affiliated with the Company).
ARTICLE 11
SATISFACTION
AND DISCHARGE
Section 11.01
Satisfaction and Discharge of Indenture.
If
at any time: (a) the Company shall have delivered to the Trustee for cancellation all Securities of a series theretofore authenticated
and not delivered to the Trustee for cancellation (other than any Securities that shall have been destroyed, lost or stolen and that shall
have been replaced or paid as provided in Section 2.07 and Securities for whose payment money or Governmental Obligations have theretofore
been deposited in trust or segregated and held in trust by the Company and thereupon repaid to the Company or discharged from such trust,
as provided in Section 11.05); or (b) all such Securities of a particular series not theretofore delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and the Company shall
deposit or cause to be deposited with the Trustee as trust funds the entire amount in moneys or Governmental Obligations or a combination
thereof, sufficient in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay at maturity or upon redemption all Securities of that series not theretofore delivered to the
Trustee for cancellation, including principal (and premium, if any) and interest due or to become due to such date of maturity or date
fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other sums payable hereunder with
respect to such series by the Company then this Indenture shall thereupon cease to be of further effect with respect to such series except
for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03, 7.06, 7.10, 11.05 and 13.04, that shall survive until the date of maturity
or redemption date, as the case may be, and Sections 7.06 and 11.05, that shall survive to such date and thereafter, and the Trustee,
on demand of the Company and at the cost and expense of the Company shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture with respect to such series.
Section 11.02
Discharge of Obligations.
If
at any time all such Securities of a particular series not heretofore delivered to the Trustee for cancellation or that have not become
due and payable as described in Section 11.01 shall have been paid by the Company by depositing irrevocably with the Trustee as trust
funds moneys or an amount of Governmental Obligations sufficient to pay at maturity or upon redemption all such Securities of that series
not theretofore delivered to the Trustee for cancellation, including principal (and premium, if any) and interest due or to become due
to such date of maturity or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other
sums payable hereunder by the Company with respect to such series, then after the date such moneys or Governmental Obligations, as the
case may be, are deposited with the Trustee the obligations of the Company under this Indenture with respect to such series shall cease
to be of further effect except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03, 7.06, 7.10, 11.05 and 13.04 hereof that
shall survive until such Securities shall mature and be paid.
Thereafter,
Sections 7.06 and 11.05 shall survive.
Section 11.03
Deposited Moneys to be Held in Trust.
All
moneys or Governmental Obligations deposited with the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be
available for payment as due, either directly or through any paying agent (including the Company acting as its own paying agent), to the
holders of the particular series of Securities for the payment or redemption of which such moneys or Governmental Obligations have been
deposited with the Trustee.
Section 11.04
Payment of Moneys Held by Paying Agents.
In
connection with the satisfaction and discharge of this Indenture all moneys or Governmental Obligations then held by any paying agent
under the provisions of this Indenture shall, upon demand of the Company, be paid to the Trustee and thereupon such paying agent shall
be released from all further liability with respect to such moneys or Governmental Obligations.
Section 11.05
Repayment to Company.
Any
moneys or Governmental Obligations deposited with any paying agent or the Trustee, or then held by the Company, in trust for payment of
principal of or premium, if any, or interest on the Securities of a particular series that are not applied but remain unclaimed by the
holders of such Securities for at least two years after the date upon which the principal of (and premium, if any) or interest on such
Securities shall have respectively become due and payable, or such other shorter period set forth in applicable escheat or abandoned or
unclaimed property law, shall be repaid to the Company on May 31 of each year or upon the Company’s request or (if then held
by the Company) shall be discharged from such trust; and thereupon the paying agent and the Trustee shall be released from all further
liability with respect to such moneys or Governmental Obligations, and the holder of any of the Securities entitled to receive such payment
shall thereafter, as a general creditor, look only to the Company for the payment thereof.
ARTICLE 12
IMMUNITY
OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 12.01
No Recourse.
No
recourse under or upon any obligation, covenant or agreement of this Indenture, or of any Security, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator, stockholder, officer or director, past, present or future as such,
of the Company or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that this Indenture and the obligations issued hereunder are solely corporate obligations, and
that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers or
directors as such, of the Company or of any predecessor or successor corporation, or any of them, because of the creation of the indebtedness
hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom; and that any and all such personal liability of every name and nature, either at common law or in equity or by constitution
or statute, of, and any and all such rights and claims against, every such incorporator, stockholder, officer or director as such, because
of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Securities or implied therefrom, are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issuance of such Securities.
ARTICLE 13
MISCELLANEOUS
PROVISIONS
Section 13.01
Effect on Successors and Assigns.
All
the covenants, stipulations, promises and agreements in this Indenture made by or on behalf of the Company shall bind its successors and
assigns, whether so expressed or not.
Section 13.02
Actions by Successor.
Any
act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board, committee or officer
of the Company shall and may be done and performed with like force and effect by the corresponding board, committee or officer of any
corporation that shall at the time be the lawful successor of the Company.
Section 13.03
Surrender of Company Powers.
The
Company by instrument in writing executed by authority of its Board of Directors and delivered to the Trustee may surrender any of the
powers reserved to the Company, and thereupon such power so surrendered shall terminate both as to the Company and as to any successor
corporation.
Section 13.04
Notices.
Except
as otherwise expressly provided herein, any notice, request or demand that by any provision of this Indenture is required or permitted
to be given, made or served by the Trustee, the Security Registrar, any paying or other agent under this Indenture or by the holders of
Securities or by any other Person pursuant to this Indenture to or on the Company may be given or served by being deposited in first class
mail, postage prepaid, addressed (until another address is filed in writing by the Company with the Trustee), as follows: [●]. Any
notice, election, request or demand by the Company or any Securityholder or by any other Person pursuant to this Indenture to or upon
the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made in writing at the Corporate Trust
Office of the Trustee.
Section 13.05
Governing Law; Jury Trial Waiver.
This
Indenture and each Security shall be governed by, and construed in accordance with, the internal laws of the State of New York, except
to the extent that the Trust Indenture Act is applicable.
EACH
PARTY HERETO, AND EACH HOLDER OF A SECURITY BY ACCEPTANCE THEREOF, HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS INDENTURE.
Section 13.06
Treatment of Securities as Debt.
It
is intended that the Securities will be treated as indebtedness and not as equity for federal income tax purposes. The provisions of this
Indenture shall be interpreted to further this intention.
Section 13.07
Certificates and Opinions as to Conditions Precedent.
(a) Upon
any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company
shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent provided for in this Indenture (other
than the certificate to be delivered pursuant to Section 13.12) relating to the proposed action have been complied with and, if requested,
an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in
the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.
(b) Each
certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant
in this Indenture (other than the certificate to be delivered pursuant to Section 13.12 of this Indenture or Section 314(a)(4) of
the Trust Indenture Act) shall include (i) a statement that the Person making such certificate or opinion has read such covenant
or condition; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based; (iii) a statement that, in the opinion of such Person, he has made such
examination or investigation as is reasonably necessary to enable him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and (iv) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been complied with.
Section 13.08
Payments on Business Days.
Except
as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established
in one or more indentures supplemental to this Indenture, in any case where the date of maturity of interest or principal of any Security
or the date of redemption of any Security shall not be a Business Day, then payment of interest or principal (and premium, if any) may
be made on the next succeeding Business Day with the same force and effect as if made on the nominal date of maturity or redemption, and
no interest shall accrue for the period after such nominal date.
Section 13.09
Conflict with Trust Indenture Act.
If
and to the extent that any provision of this Indenture limits, qualifies or conflicts with the duties imposed by Section 318(c) of
the Trust Indenture Act, such imposed duties shall control.
Section 13.10
Counterparts.
This
Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute
but one and the same instrument. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission
shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture
for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for
all purposes.
Section 13.11
Separability.
In
case any one or more of the provisions contained in this Indenture or in the Securities of any series shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions
of this Indenture or of such Securities, but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
Section 13.12
Compliance Certificates.
The
Company shall deliver to the Trustee, within 120 days after the end of each fiscal year during which any Securities of any series were
outstanding, an officer’s certificate stating whether or not the signers know of any Event of Default that occurred during such
fiscal year. Such certificate shall contain a certification from the principal executive officer, principal financial officer or principal
accounting officer of the Company that a review has been conducted of the activities of the Company and the Company’s performance
under this Indenture and that the Company has complied with all conditions and covenants under this Indenture. For purposes of this Section 13.12,
such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture. If the
officer of the Company signing such certificate has knowledge of such an Event of Default, the certificate shall describe any such Event
of Default and its status.
Section 13.13
U.S.A. Patriot Act.
The
parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions
and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies
each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree
that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the
U.S.A. Patriot Act.
Section 13.14
Force Majeure.
In
no event shall the Trustee, the Security Registrar, any paying agent or any other agent under this Indenture 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, and interruptions, loss or malfunctions of utilities, communications or computer (software
and hardware) services; it being understood that the Trustee, the Security Registrar, any paying agent or any other agent under this Indenture
shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable
under the circumstances.
Section 13.15
Table of Contents; Headings.
The
table of contents and headings of the articles and sections of this Indenture have been inserted for convenience of reference only, are
not intended to be considered a part hereof, and will not modify or restrict any of the terms or provisions hereof.
[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.
| |
Apollo Medical Holdings, Inc. |
| |
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
| |
|
| |
[Trustee], as Trustee |
| |
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
CROSS-REFERENCE
TABLE (1)
|
Section of
Trust Indenture Act of 1939, as Amended |
|
Section of
Indenture |
| 310(a) |
|
7.09 |
| 310(b) |
|
7.08 |
| |
|
7.10 |
| 310(c) |
|
Inapplicable |
| 311(a) |
|
7.13 |
| 311(b) |
|
7.13 |
| 311(c) |
|
Inapplicable |
| 312(a) |
|
5.01 |
| |
|
5.02(a) |
| 312(b) |
|
5.02(c) |
| 312(c) |
|
5.02(c) |
| 313(a) |
|
5.04(a) |
| 313(b) |
|
5.04(b) |
| 313(c) |
|
5.04(a) |
| |
|
5.04(b) |
| 313(d) |
|
5.04(c) |
| 314(a) |
|
5.03 |
| |
|
13.12 |
| 314(b) |
|
Inapplicable |
| 314(c) |
|
13.07(a) |
| 314(d) |
|
Inapplicable |
| 314(e) |
|
13.07(b) |
| 314(f) |
|
Inapplicable |
| 315(a) |
|
7.01(a) |
| |
|
7.01(b) |
| 315(b) |
|
7.14 |
| 315(c) |
|
7.01 |
| 315(d) |
|
7.01(b) |
| 315(e) |
|
6.07 |
| 316(a) |
|
6.06 |
| |
|
8.04 |
| 316(b) |
|
6.04 |
| 316(c) |
|
8.01 |
| 317(a) |
|
6.02 |
| 317(b) |
|
4.03 |
| 318(a) |
|
13.09 |
(1) This
Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms
or provisions.
Exhibit 5.1
August 16, 2023
Apollo Medical Holdings, Inc.
1668 S. Garfield Avenue, 2nd
Floor
Alhambra, California 91801
| Re: | Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted
as counsel to Apollo Medical Holdings, Inc., a Delaware corporation (the “Company”), in connection with the
preparation and filing by the Company of an automatic shelf registration statement on Form S-3 (the “Registration Statement”)
with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities
Act”), relating to the offering from time to time, pursuant to Rule 415 under the Securities Act, of any combination of (i)
shares of the Company’s common stock, $0.001 par value per share (“Common Stock”), (ii) shares of preferred stock,
$0.001 par value per share (the “Preferred Stock”), (iii) debt securities (the “Debt Securities”),
(iv) depositary shares representing fractional interests in a share or multiple shares of Preferred Stock (“Depositary Shares”),
(v) warrants to purchase shares of Common Stock or Preferred Stock or Debt Securities (the “Warrants”), (vi) purchase
contracts for the purchase or sale of Common Stock, Preferred Stock, Debt Securities or other securities (the “Purchase Contracts”),
(vii) units representing ownership of Common Stock, Preferred Stock, Debt Securities, Depositary Shares, Warrants, Purchase Contracts,
or other securities, or any combination thereof (the “Units”), and (viii) subscription rights to purchase Common
Stock, Preferred Stock or other securities (the “Rights”). The Common Stock, the Preferred Stock, the Debt Securities,
the Depositary Shares, the Warrants, the Purchase Contracts, the Units and the Rights are collectively referred to as the “Securities”
and each individually as a “Security”. The offering of the Securities will be as set forth in the prospectus (the “Prospectus”)
contained in the Registration Statement, as supplemented by one or more supplements to the Prospectus.
We have assumed that: (a) the Debt Securities will be issued in one
or more series pursuant to an Indenture (the “Indenture”) to be entered into between the Company and a trustee to be
named therein (the “Trustee”) and duly qualified under the Trust Indenture Act of 1939, as amended, a form of which
is filed as an exhibit to the Registration Statement; (b) the Preferred Stock will be issued in one or more series and the relative powers,
designations, preferences, rights and qualifications, limitations and restrictions of such Preferred Stock will be set forth in one or
more certificates of designation (each, a “Certificate of Designation”); (c) the shares of Preferred Stock represented
by Depositary Shares will be deposited pursuant to one or more Depositary Agreements (each, a “Depositary Agreement”)
to be entered into between the Company and a bank or trust company to be named, as depositary (the “Depositary”); (d)
the Warrants will be issued pursuant to one or more warrant agreements (each, a “Warrant Agreement”) to be entered
into between the Company and the warrant agent party thereto (the “Warrant Agent”); (e) the Purchase Contracts will
be issued pursuant to one or more contracts (each, a “Contract”) for the purchase or sale of Common Stock, Preferred
Stock, Debt Securities or other securities, to be entered into between the Company and the purchaser party thereto (the “Purchaser”);
(f) the Units will be issued pursuant to one or more unit agreements (each, a “Unit Agreement”) to be entered into
between the Company and the unit agent party thereto (the “Unit Agent”); and (g) the Rights will be issued pursuant
to one or more rights agreements (each, a “Rights Agreement”), to be entered into between the Company and the rights
agent party thereto (the “Rights Agent”). The Indenture, Certificates of Designation, Depositary Agreements, Warrant
Agreements, Contracts, Unit Agreements and Rights Agreements are hereinafter referred to as the “Securities Documents”.
Item 601 of Regulation S-K and the instructions to Form S-3 require
that an opinion of counsel concerning the legality of the securities to be registered be filed as an exhibit to a Form S-3 registration
statement if the securities are original issue shares. This opinion is provided in satisfaction of that requirement as it relates to the
Registration Statement.
August 16, 2023
Page 2
In rendering this opinion, we have examined copies of (a) the Company’s
Restated Certificate of Incorporation (as amended, the “Certificate of Incorporation”), (b) the Company’s Restated
By-Laws (as amended, the “Bylaws”), (c) the Registration Statement and Prospectus, (d) the form of Indenture, (e) certain
resolutions and minutes of the Board of Directors of the Company relating to the Securities and the Registration Statement, and (f) copies
of such other agreements, documents, instruments, certificates and records as we have deemed advisable in order to render our opinion
set forth below.
In such examination, we have assumed: (a) the genuineness of all signatures;
(b) the legal capacity of all natural persons; (c) the authenticity of all documents submitted to us as originals; (d) the conformity
to original documents of all documents submitted to us as certified, conformed or photostatic copies; (e) the accuracy, completeness and
authenticity of certificates of public officials; (f) the due authorization, execution and delivery of all documents where authorization,
execution and delivery are prerequisites to the effectiveness of such documents; (g) as to matters of fact, the truthfulness of the representations
made in the Securities Documents and in certificates of public officials and officers of the Company; (h) that each of the Securities
Documents, when executed, will be the legal, valid and binding obligations of each party thereto, other than the Company, enforceable
against each such party in accordance with its terms; (i) that the issuance and delivery by the Company of the Securities and the execution,
delivery and performance by the Company of the Securities Documents do not and will not: (i) contravene its Certificate of Incorporation
or Bylaws, (ii) except with respect to Generally Applicable Law (as defined below), violate any law, rule or regulation applicable to
it, or (iii) result in any conflict with, or breach of, any agreement or document binding on the Company or any of its subsidiaries; and
except with respect to Generally Applicable Law, no authorization, approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or any other third party is required for the due execution, delivery or performance by the Company of any
Securities Document to which it is a party or, if any such authorization, approval, action, notice or filing is required, it has been
obtained, taken, given or made and is in full force and effect; (j) at the time of the offering or sale, the Securities and the Securities
Documents relating thereto will have been specifically authorized by the Board of Directors of the Company or an authorized committee
thereof for issuance and execution and delivery by the Company; (k) any Securities issuable upon conversion, exchange or exercise of any
Security being offered will, at the time of such offering or sale, have been duly authorized, created and, if appropriate, reserved for
issuance upon such conversion, exchange or exercise; (l) any Securities consisting of Common Stock or Preferred Stock, including Common
Stock or Preferred Stock issuable upon conversion, exchange or exercise of any Security being offered, will, when so issued, have been
duly authorized, created, executed and delivered, against receipt of the consideration approved by the Company, which will be no less
than the par value thereof, and a sufficient number of shares of Common Stock and/or Preferred Stock will be available for issuance; (m)
with respect to the issuance and sale of any Debt Securities, (i) the Indenture will have been duly executed and delivered by the Company
and the Trustee, and (ii) the Debt Securities, when issued, will be executed, authenticated, issued and delivered against receipt of the
consideration therefor approved by the Company and as provided in the Indenture; (n) with respect to the issuance and sale of any Depositary
Shares, (i) the related Depositary Agreement will have been duly executed and delivered by the Company and the Depositary, and (ii) the
Depositary Shares, when issued, will be executed, countersigned by the Depositary, issued and delivered against receipt of the consideration
therefor approved by the Company and as provided in such Depositary Agreement (assuming the underlying securities have been validly issued
and deposited with the Depositary); (o) with respect to the issuance and sale of any Warrants, (i) the related Warrant Agreement will
have been duly executed and delivered by the Company and the Warrant Agent, and (ii) the Warrants, when issued, will be executed, countersigned
by the Warrant Agent, issued and delivered against receipt of the consideration therefor approved by the Company and as provided in such
Warrant Agreement; (p) with respect to the issuance and sale of any Purchase Contracts, (i) the related Contract will have been duly executed
and delivered by the Company and the Purchaser, and (ii) the Purchase Contracts, when issued, will be executed, countersigned by the Purchaser,
issued and delivered against receipt of the consideration therefor approved by the Company and as provided in such Contract; (q) with
respect to the issuance and sale of any Units, (i) the related Unit Agreement will have been duly executed and delivered by the Company
and the Unit Agent, and (ii) the Units, when issued, will be executed, countersigned by the Unit Agent, issued and delivered against receipt
of the consideration therefor approved by the Company and as provided in such Unit Agreement; (r) with respect to the issuance and sale
of any Rights, (i) the related Rights Agreement will have been duly executed and delivered by the Company and the Rights Agent, and (ii)
the Rights, when issued, will be executed, countersigned by the Rights Agent, issued and delivered against receipt of the consideration
therefor approved by the Company and as provided in such Rights Agreement; and (s) that the Registration Statement shall have become effective
and such effectiveness shall not have been terminated or withdrawn.
August 16, 2023
Page 3
We have not independently established the validity of the foregoing
assumptions.
Based upon and subject to the foregoing and such other investigation
as we have deemed necessary and subject to the qualifications set forth below, we are of the opinion that:
| |
1. |
Any Securities consisting of Common Stock will be validly issued, fully paid and non-assessable. |
| |
|
|
| |
2. |
Any Securities consisting of Preferred Stock will be validly issued, fully paid and non-assessable. |
| |
|
|
| |
3. |
Any Securities consisting of Debt Securities will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, and will be entitled to the benefits of the Indenture. |
| |
|
|
| |
4. |
Any Securities consisting of Depositary Shares will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, and will be entitled to the benefits of the Depositary Agreement. |
| |
|
|
| |
5. |
Any Securities consisting of Warrants will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, and will be entitled to the benefits of the Warrant Agreement. |
| |
|
|
| |
6. |
Any Securities consisting of Purchase Contracts will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, and will be entitled to the benefits of the Contract. |
| |
|
|
| |
7. |
Any Securities consisting of Units will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, and will be entitled to the benefits of the Unit Agreement. |
| |
|
|
| |
8. |
Any Securities consisting of Rights will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, and will be entitled to the benefits of the Rights Agreement. |
The foregoing opinions are qualified to the extent that the enforceability
of any document, instrument, Securities or Securities Document may be limited by or subject to bankruptcy, insolvency, fraudulent transfer
or conveyance, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally, and general
equitable or public policy principles. With respect to Securities denominated in a currency other than United States dollars, we express
no opinion as to whether a court would award a judgment in a currency other than United States dollars.
Our opinions expressed above are limited to the General Corporation
Laws of the State of Delaware and laws of the State of New York, in each case as currently in effect (collectively, “Generally
Applicable Law”), and we express no opinion as to the effect on the matters covered by this letter of the laws of any other
jurisdiction.
This opinion letter is expressly limited to the matters set forth above,
and we render no opinion, whether by implication or otherwise, as to any other matters relating to the Company, the Securities, the Securities
Documents, the Registration Statement or the Prospectus.
August 16, 2023
Page 4
We hereby consent to being named in the Registration Statement and
in the Prospectus under the caption “Legal Matters” and to the use of this opinion for filing with said Registration Statement
as Exhibit 5.1 thereto. In giving this consent, we do not hereby admit that we are within the category of persons whose consent is required
under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Thompson Hine LLP
Thompson Hine LLP
Exhibit 23.1
Consent of Independent Registered Public Accounting
Firm
We consent to the reference to our firm under the caption
“Experts” in the Registration Statement (Form S-3) and related Prospectus of Apollo Medical Holdings, Inc. for the registration
of common stock, preferred stock, debt securities, depositary shares, warrants, purchase contracts, units, and subscription rights and
to the incorporation by reference therein of our reports dated March 1, 2023, except for effects of the restatement discussed in Note
1, as well as the reportable segments disclosures discussed in Note 21, as to which the date is August 9, 2023, with respect to the
consolidated financial statements of Apollo Medical Holdings, Inc., and the effectiveness of internal control over financial reporting
of Apollo Medical Holdings, Inc., included in its Annual Report (Form 10-K/A) for the year ended December 31, 2022, filed with the Securities
and Exchange Commission.
/s/ Ernst & Young LLP
Los Angeles, California
August 16, 2023
Exhibit 107
Calculation of Filing Fee Tables
Form S-3
(Form Type)
Apollo Medical Holdings, 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 |
Equity |
Common Stock, $0.001 par value per share(1) |
Rule 456(b) and 457(r) |
(1) |
(2) |
(2) |
(3) |
(3) |
|
|
|
|
| |
Equity |
Preferred Stock, $0.001 par value per share(1) |
Rule 456(b) and 457(r) |
(1) |
(2) |
(2) |
(3) |
(3) |
|
|
|
|
| |
Debt |
Debt Securities(1) |
Rule 456(b) and 457(r) |
(1) |
(2) |
(2) |
(3) |
(3) |
|
|
|
|
| |
Other |
Depositary Shares(1) |
Rule 456(b) and 457(r) |
(1) |
(2) |
(2) |
(3) |
(3) |
|
|
|
|
| |
Other |
Warrants(1) |
Rule 456(b) and 457(r) |
(1) |
(2) |
(2) |
(3) |
(3) |
|
|
|
|
| |
Other |
Purchase Contracts(1) |
Rule 456(b) and 457(r) |
(1) |
(2) |
(2) |
(3) |
(3) |
|
|
|
|
| |
Other |
Units(1) |
Rule 456(b) and 457(r) |
(1) |
(2) |
(2) |
(3) |
(3) |
|
|
|
|
| |
Other |
Subscription Rights(1) |
Rule 456(b) and 457(r) |
(1) |
(2) |
(2) |
(3) |
(3) |
|
|
|
|
| Fees Previously Paid |
— |
— |
— |
— |
— |
— |
|
— |
|
|
|
|
| Carry Forward Securities |
| Carry Forward Securities |
— |
— |
— |
— |
|
— |
|
|
— |
— |
— |
— |
| |
Total Offering Amounts |
|
(2) |
|
(3) |
|
|
|
|
| |
Total Fees Previously Paid |
|
|
|
— |
|
|
|
|
| |
Total Fee Offsets |
|
|
|
$18,180(4) |
|
|
|
|
| |
Net Fee Due |
|
|
|
(3) |
|
|
|
|
Table 2 – Fee Offset Claims and Sources
| |
Registrant or Filer Name |
Form or Filing Type |
File Number |
Initial Filing Date |
Filing Date |
Fee Offset Claimed |
Security Type Associated with Fee Offset Claimed |
Security Title Associated with Fee Offset Claimed |
Unsold Securities Associated with Fee Offset Claimed |
Unsold Aggregate Offering Amount Associated with Fee Offset Claimed |
Fee Paid with Fee Offset Source |
| Rule 457(p) |
| Fee Offset Claims |
Apollo Medical Holdings, Inc. |
S-3 |
333-231109 |
April 29, 2019 |
|
$18,180(4) |
Unallocated (Universal) Shelf |
(4) |
(4) |
$150,000,000 |
|
| Fee Offset Sources |
Apollo Medical Holdings, Inc. |
S-3 |
333-231109 |
|
April 29, 2019 |
|
|
|
|
|
$18,180 |
| (1) | There are being registered hereunder an indeterminate number or amount, as the case may be, of the securities of each identified class
as may from time to time be offered and sold at indeterminate prices. Any securities registered hereunder may be sold separately or in
combination with the other securities registered hereunder. The securities registered also include an indeterminate number or amount,
as the case may be, of securities as may be issued upon exercise, settlement, exchange or conversion, as the case may be, of or for the
securities registered hereunder or pursuant to the anti-dilution provisions of any such securities. In addition, pursuant to Rule 416
under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers any additional
securities that may be issuable with respect to the securities being registered hereunder as a result of any stock splits, stock dividends
or similar transactions. |
| (2) | The proposed maximum per security and aggregate offering prices per class of securities will be determined from time to time by the
registrant in connection with the issuance by the registrant of the securities registered hereunder and is not specified as to each class
of security. Separate consideration may or may not be received for securities that are issuable upon the conversion or exercise of, or
in exchange for, other securities, or that are issued in units. |
| (3) | In accordance with Rule 456(b) and 457(r) under the Securities Act, the registrant is deferring payment of all registration fees in
respect of securities which are being registered in an indeterminate amount. In connection with the securities offered hereby, the registrant
will pay “pay-as-you-go registration fees” in accordance with Rule 456(b) under the Securities Act. The registrant will calculate
the registration fee applicable to an offer of securities pursuant to this registration statement based on the fee rate in effect on the
date of such fee payment. |
| (4) | The registrant previously registered an indeterminate amount of securities having an aggregate offering price of up to $150,000,000,
pursuant to a Registration Statement on Form S-3 (File No. 333-231109) filed with the Securities and Exchange Commission on April 29,
2019 (the “Prior Registration Statement”) and declared effective on May 13, 2019. As of the date of this Registration Statement,
the registrant has not sold any of these securities under the Prior Registration Statement. Pursuant to Rule 457(p) under the Securities
Act, the registration fee of $18,180 that has already been paid and remains unused with respect to securities that were previously registered
pursuant to the Prior Registration Statement and were not sold thereunder will continue to be applied to the securities included in this
Registration Statement, and the offering of securities by the registrant under the Prior Registration Statement will be deemed terminated
as of the date of effectiveness of this Registration Statement. |
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