As
filed with the Securities and Exchange Commission on November 17, 2023
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
FORM
S-3
REGISTRATION
STATEMENT
Under
THE
SECURITIES ACT OF 1933
MICROBOT
MEDICAL INC.
(Exact
name of Registrant as specified in its charter)
Delaware |
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94-3078125 |
(State
or other jurisdiction of |
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(I.R.S.
Employer |
Incorporation
or organization) |
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Identification
No.) |
288
Grove Street, Suite 388
Braintree,
Massachusetts 02184
(781)
875-3605
(Address,
including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
Harel
Gadot
Chairman,
President and Chief Executive Officer
288
Grove Street, Suite 388
Braintree,
Massachusetts 02184
(781)
875-3605
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Stephen
E. Fox, Esq.
Dominick
P. Ragno, Esq.
Ruskin
Moscou Faltischek, P.C.
1425
RXR Plaza
East
Tower, 15th Floor
Uniondale,
New York 11556-1425
(516)
663-6600
Approximate
date of commencement of proposed sale to the public:
From
time to time after the effective date of this registration statement, as determined by the Registrant.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box: ☐
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following
box: ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this form is a post-effective amendment to a registration statement filed pursuant 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 |
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Accelerated
Filer |
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Non-Accelerated
Filer |
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Smaller
Reporting Company |
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Emerging
Growth Company |
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The
Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective
in accordance with Section 8(a)
of the Securities Act of 1933, AS AMENDED, or until THE registration statement shall become effective on such date as the SECURITIES
AND EXCHANGE Commission, acting pursuant to SAID Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. WE MAY NOT SELL These securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities AND IS NOT soliciting
AN OFFER to buy these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED NOVEMBER 17, 2023
PROSPECTUS
$75,000,000
Common
Stock
Preferred
Stock
Warrants
Debt
Securities
Rights
Units
This
prospectus will allow us to issue, from time to time at prices and on terms to be determined at or prior to the time of the offering,
up to $75,000,000 of any combination of the securities described in this prospectus, either individually or in units. We may also offer
common stock or preferred stock upon conversion of or exchange for the debt securities; common stock upon conversion of or exchange for
the preferred stock; or common stock, preferred stock or debt securities upon the exercise of warrants or rights.
This
prospectus describes the general terms of these securities and the general manner in which these securities will be offered. We will
provide you with the specific terms of any offering in one or more supplements to this prospectus. The prospectus supplements will also
describe the specific manner in which these securities will be offered and may also supplement, update or amend information contained
in this document. You should read this prospectus and any prospectus supplement, as well as any documents incorporated by reference into
this prospectus or any prospectus supplement, carefully before you invest.
Our
securities may be sold directly by us to you, through agents designated from time to time or to or through underwriters or dealers. For
additional information on the methods of sale, you should refer to the section entitled “Plan of Distribution” in
this prospectus and in the applicable prospectus supplement. If any underwriters or agents are involved in the sale of our securities
with respect to which this prospectus is being delivered, the names of such underwriters or agents and any applicable fees, commissions
or discounts and over-allotment options will be set forth in a prospectus supplement. The price to the public of such securities and
the net proceeds that we expect to receive from such sale will also be set forth in a prospectus supplement. If information in any prospectus
supplement is inconsistent with the information in this prospectus, then the information in that prospectus supplement will apply and
will supersede the information in this prospectus.
Our
common stock is listed on The Nasdaq Capital Market under the symbol “MBOT.” On November 14, 2023, the last reported
sale price of our common stock on The Nasdaq Capital Market was $1.385 per share. The applicable prospectus supplement will contain
information, where applicable, as to any other listing, if any, on The Nasdaq Capital Market or any securities market or other securities
exchange of the securities covered by the prospectus supplement. Prospective purchasers of our securities are urged to obtain current
information as to the market prices of our securities, where applicable.
Investing
in our securities involves a high degree of risk. Before deciding whether to invest in our securities, you should consider carefully
the risks that we have described on page 6 of this prospectus under the caption “Risk Factors.” We may include specific
risk factors in supplements to this prospectus under the caption “Risk Factors.” This prospectus may not be used to
sell our securities unless accompanied by a prospectus supplement.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined
if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The
date of this prospectus is , 2023.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or SEC, utilizing a “shelf”
registration process. Under this shelf registration process, we may offer shares of our common stock or preferred stock, various series
of debt securities and/or warrants or rights to purchase any of such securities, either individually or in units, in one or more offerings,
with a total value of up to $75,000,000. This prospectus provides you with a general description of the securities we may offer. Each
time we offer a type or series of securities under this prospectus, we will provide a prospectus supplement that will contain specific
information about the terms of that offering.
This
prospectus does not contain all of the information included in the registration statement. For a more complete understanding of the offering
of the securities, you should refer to the registration statement, including its exhibits. The prospectus supplement may also add, update
or change information contained or incorporated by reference in this prospectus. However, no prospectus supplement will offer a security
that is not registered and described in this prospectus at the time of its effectiveness. This prospectus, together with the applicable
prospectus supplements and the documents incorporated by reference into this prospectus, includes all material information relating to
the offering of securities under this prospectus. You should carefully read this prospectus, the applicable prospectus supplement, the
information and documents incorporated herein by reference and the additional information under the headings “Where You Can
Find More Information” and “Incorporation of Certain Information by Reference” before making an investment
decision.
You
should rely only on the information we have provided or incorporated by reference in this prospectus or any prospectus supplement. We
have not authorized anyone to provide you with information different from that contained or incorporated by reference in this prospectus.
No dealer, salesperson, or other person is authorized to give any information or to represent anything not contained or incorporated
by reference in this prospectus. You must not rely on any unauthorized information or representation. This prospectus is an offer to
sell only the securities offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so. You should assume
that the information in this prospectus or any prospectus supplement is accurate only as of the date on the front of the document and
that any information we have incorporated herein by reference is accurate only as of the date of the document incorporated by reference,
regardless of the time of delivery of this prospectus or any sale of a security.
We
further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document
that is incorporated by reference in this prospectus were made solely for the benefit of the parties to such agreement, including, in
some cases, for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation,
warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly,
such representations, warranties and covenants should not be relied on as accurately representing the current state of our affairs.
This
prospectus may not be used to consummate sales of our securities unless it is accompanied by a prospectus supplement. To the extent there
are inconsistencies between any prospectus supplement, this prospectus and any documents incorporated by reference, the document with
the most recent date will control.
Unless
the context indicates otherwise in this prospectus, the terms “Microbot,” the “Company,” “we,” “our”
or “us” in this prospectus refer to Microbot Medical Inc. and its wholly-owned subsidiaries.
PROSPECTUS SUMMARY
This
summary highlights selected information about our Company, the offering of our securities under this prospectus and information appearing
elsewhere in this prospectus and in the documents we incorporate by reference. This summary is not complete and does not contain all
the information that you should consider before investing in our securities. You should read this entire prospectus carefully, including
“Risk Factors” contained in this prospectus beginning on page 6, and the more detailed financial statements, notes to the
consolidated financial statements and other information incorporated by reference from our filings with the SEC or included in any applicable
prospectus supplement. Investing in our securities involves risks. Therefore, carefully consider the risk factors set forth in any prospectus
supplement and in our most recent annual and quarterly filings with the SEC, as well as other information in this prospectus and any
prospectus supplements and the documents incorporated by reference herein or therein, before purchasing our securities. Each of the risk
factors could adversely affect our business, operating results and financial condition, as well as adversely affect the value of an investment
in our securities.
Overview
Microbot
is a pre-clinical medical device company specializing in the research, design and development of next generation robotic endoluminal
surgery devices targeting the minimally invasive surgery space. Microbot is primarily focused on leveraging its robotic technologies
with the goal of redefining surgical robotics while improving surgical outcomes for patients.
Core-Business
Focus Program
On
May 15, 2023, the Board of Directors of the Company authorized, and the Company commenced, a core-business focus program while the Company
seeks to raise additional capital to continue development of the LIBERTY® robotic system. This core-business focus program
includes the cessation of research and development activities not related to LIBERTY, including terminating the Company’s agreement
with CardioSert for that technology, and returning intellectual property relating to the SCS (ViRob) and TipCat to Technion Research
and Development Foundation.
Cost
Reduction Plan
In
addition to the core-business focus program described above, the Board of Directors of the Company authorized, and the Company commenced,
a cost reduction plan while the Company seeks to raise additional capital to continue development of the LIBERTY robotic system.
In
May and June 2023, we raised sufficient capital that, together with the ongoing savings from the cost reduction plan, has enabled us
to continue our operations through approximately April of 2024, including completion of the V&V study, perform the GLP study and
submit the IDE to the US Food & Drug Administration. We also, retroactive to November 1, 2023, recommenced paying Rachel Vaknin,
our CFO, and Simon Sharon, our CTO and General Manager, their regular salaries and benefits that were previously reduced as a result
of the cost reduction plan. Continuing the continuing commitment of Harel Gadot, our CEO, to the Company to support it financially while
it completes its current development and regulatory activities, his compensation will continue to be subject to his 50% reduction as
part of the cost reduction plan. We continue to seek new sources of capital to stabilize our finances and provide operating runway subsequent
to April of 2024. In the event the Company is not successful in raising additional capital by April of 2024, or if the results of the
V&V study and first-in-human trials are not promising, the Company may be forced to take more drastic actions to conserve capital
or shut down operations entirely.
First-In-Human
Clinical Cases
Subject
to the final report from our recently completed pivotal pre-clinical study using the LIBERTY Robotic Surgical System which is expected
before the end of 2023, and the completion of the verification and validation (V&V) process of which certain phases have been completed
but others are ongoing and may be subject to delays indirectly caused by the Israel-Hamas war described below, we plan on submitting
the Investigational Device Exemption (IDE) application to the U.S. Food and Drug Administration in the first quarter of 2024, in order
to commence a pivotal clinical trial in humans. In addition, we are considering secondary options and contingencies in the event the
IDE application is delayed. After initially considering potential First-In-Human cases in Brazil, by engaging with interventional radiologist
Prof. Francisco Cesar Carnevale from University of Sao Paulo Medical School Hospital, we determined that first-in-human clinical trials
in Brazil have similar requirements as in the United States. Furthermore, we are still in the process of evaluating the potential of
utilizing Greece as an option to carry our First-In Human Cases. However, although we believe Brazil and Greece remain strategically
important for commercialization of our LIBERTY device, we decided not to pursue First-In-Human trials or cases outside of the United
States at this time to avoid conflict with our FDA submission process.
Israel-Hamas
War
On
October 7, 2023, the State of Israel, where the Company’s operations are primarily based, suffered a surprise attack by hostile
forces from Gaza, which led to the declaration by Israel of the “Iron Swords” military operation. This military operation
and related activities are on-going as of the date of this prospectus. Consequently:
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Some
of the Company’s Israeli subcontractors, vendors, suppliers and other companies in which the Company relies, are currently
only partially active, as instructed by the relevant authorities, which has caused delays in aspects of our development and regulatory
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The
lack of international flights in and out of Israel may affect the Company’s ability to import materials that are required to
construct the Company’s devices which are required to complete development and regulatory activities; and |
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The
lack of international flights in and out of Israel may affect the Company’s commercial and regulatory activities. |
The
Company is currently assessing whether there are any material adverse effects on its anticipated milestones and results of operations
in the fourth quarter of 2023 and perhaps beyond due to the military operation and related matters, the extent of which cannot be estimated
at this stage.
Technological
Platforms
LIBERTY®
On
January 13, 2020, Microbot unveiled what it believes is the world’s first fully disposable robotic system for use in endovascular
interventional procedures, such as cardiovascular, peripheral and neurovascular. The LIBERTY robotic system features a unique compact
design with the capability to be operated remotely, reduce radiation exposure and physical strain to the physician, reduce the risk of
cross contamination, as well as the potential to eliminate the use of multiple consumables when used with its NovaCross platform or possibly
other guidewire/microcatheter technologies.
LIBERTY
is designed to maneuver guidewires and over-the-wire devices (such as microcatheters) within the body’s vasculature. It eliminates
the need for extensive capital equipment requiring dedicated Cath-lab rooms as well as dedicated staff.
We
believe LIBERTY’s addressable markets are the Interventional Cardiology, Interventional Radiology and Interventional Neuroradiology
markets.
The
unique characteristics of LIBERTY – compact, mobile, disposable and remotely controlled - open the opportunity of expanding telerobotic
interventions to patients with limited access to life-saving procedures, such as mechanical thrombectomy in ischemic stroke.
LIBERTY
is being designed to have the following attributes:
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Compact
size - Eliminates the need for large capital equipment in dedicated cath-lab rooms with dedicated staff. |
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Fully
disposable - To our knowledge, the first and only fully disposable, robotic system for endovascular procedures. |
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One
& Done® – Can be made compatible with Microbot’s NitiLoop’s NovaCross products or possibly other
guidewire/microcatheter technologies, that combines guidewire and microcatheter into a single device. |
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State
of the art maneuverability - Provides linear, rotational and tip control of its guidewire, as well as linear motion for an additional
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Compatibility
with a wide range of commercially-available guidewires, microcatheters and guide-catheters. |
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Enhanced
operator safety and comfort – Aims to reduce exposure to ionizing radiation and the need for heavy lead vests otherwise to
be worn during procedures, as well as reducing the exposure to Hospital Acquired Infections (HAI). |
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Ease
of use - LIBERTY’s intuitive remote controls aims to simplify advanced procedures while shortening the physician’s learning
curve. |
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Telemedicine
compatible - Capable of supporting tele-catheterization, carried out remotely by highly trained specialists. |
On
August 17, 2020, Microbot announced the successful conclusion of its feasibility animal study using the LIBERTY robotic system. The study
met all of its end points with no intraoperative adverse events, which supports Microbot’s objectives to allow physicians to conduct
a catheter-based procedure from outside the catheterization laboratory (cath-lab), avoiding radiation exposure, physical strain and the
risk of cross contamination. The study was performed by two leading physicians in the neuro vascular and peripheral vascular intervention
spaces, and the results demonstrated robust navigation capabilities, intuitive usability and accurate deployment of embolic agents, most
of which was conducted remotely from the cath-lab’s control room.
On
December 22, 2021, we entered into a strategic collaboration agreement for technology co-development with Stryker Corporation, acting
through its Neurovascular Division. Pursuant to the agreement, the collaborative development program between Stryker and us aims to integrate
certain of Stryker’s instruments with our LIBERTY Robotic System to address certain neurovascular procedures. The activities contemplated
by the Agreement shall be specified in one or more development plans derived from the terms and conditions set forth in the Agreement.
We are still determining scheduling to move the collaboration forward.
In
December 2021, we achieved design freeze of the LIBERTY device.
In
the first quarter of 2022, we filed our pre-submission package for the LIBERTY Robotic System with the FDA, addressing the regulatory
pathway for the LIBERTY Robotic System. On July 22, 2022, the Company completed a pre-submission process with the FDA regarding the LIBERTY
device. Formal feedback from the FDA included a recommendation to perform a clinical study and a human factors validation study, to support
clearance through the 510(k) notification process.
In
September and October 2022, the Company conducted an animal study at an FDA accredited European-based MedTech research laboratory, which
was performed by a team of seasoned Key Opinion Leaders (KOLs) in the endovascular space, using porcine model. During the animal study,
the physicians conducted 63 navigations to the targeted sites using the investigational LIBERTY Robotic System and performed an equal
number of procedures manually. The LIBERTY Robotic System received positive feedback from participating physicians, and there were no
observable immediate intraoperative adverse events, or harm, to the test subjects. The report from the animal study, which included histopathology
data (the microscopic examination of tissue to study the manifestations of disease), exhibited equivocal results which were identified
as related to unusual physiological animal responses in both manual and robotic test groups. The Company believes the results of the
study allow it to move forward and focus on the next phases to ultimately include a U.S.-based pivotal pre-clinical study. The Company,
together with its regulatory experts and consultants, believe a larger sample size and robust data generated by this study will advance
the company’s efforts towards the submission of an Investigational Device Exemption (IDE) with the U.S. Food and Drug Administration
(FDA).
On
May 3, 2023, we announced that the LIBERTY Robotic system has surpassed its 100th catheterization during multiple pre-clinical studies,
with a 95% success rate of reaching pre-determined vascular targets, such as distal branches of hepatic, gastric, splenic, mesenteric,
renal and hypogastric arteries. Moreover, all of the procedures were completed without notable signs of intraoperative injury.
On
June 29, 2023, we announced the successful completion of a two-day pre-clinical study held by leading key opinion leaders at a New York-based
research lab, where they performed dozens of catheterizations, including the utilization of the LIBERTY Robotic Surgical System’s
remote operation capabilities, to pre-determined vascular targets, with a 100% success rate of reaching the intended target with no observable
on-site complications.
In
October 2023, we announced the successful initial outcomes from our pivotal pre-clinical study with the LIBERTY Robotic Surgical System.
The pivotal study was conducted by three leading interventional radiologists that utilized the LIBERTY Robotic Surgical System to reach
a total of 48 animal targets. A total of 6 LIBERTY Systems were used in the study, and each was used to reach a total of 8 targets. All
6 LIBERTY Systems performed flawlessly, with 100% usability and technical success. No acute adverse events or complications were visually
observed intra-operative. We expect to receive the comprehensive final report later in the fourth quarter of 2023. Subject to the final
report, and the completion of the verification and validation process which is ongoing but subject to delays indirectly caused by the
Israel-Hamas war described above, we plan on submitting the Investigational Device Exemption application to the FDA in the first quarter
of 2024, in order to commence our pivotal clinical trial in humans.
On
October 24 2023, we announced that we received confirmation for the commencement of the process to support our future CE Mark approval,
and to ultimately allow us to market the LIBERTY® Robotic Surgical System in Europe as well as other regions who accept the CE Mark.
According to the confirmation, we will commence audits for ISO 13485 certification to ensure compliance with the Quality Management System
(QMS) requirements of the EU Medical Devices Regulation (MDR 2017/745), during the first half of 2024. We had previously taken the first
step to advance our European program by engaging with a leading Notified Body, who recently confirmed dates for conducting the required
audits.
NovaCrossTM
On
October 6, 2022, we purchased substantially all of the assets, including intellectual property, devices, components and product related
materials of Nitiloop Ltd., an Israeli limited liability company. The assets include intellectual property and technology in the field
of intraluminal revascularization devices with anchoring mechanism and integrated microcatheter, and the products or potential products
incorporating the technology owned by Nitiloop and designated by Nitiloop as “NovaCross”, “NovaCross Xtreme”
and “NovaCross BTK” and any enhancements, modifications and improvements. This technology is also expected to be incorporated
in our One & Done feature.
Other
Technologies and Platforms
During
the second and third quarters of 2023, as a result of our core-business focus program and our cost reduction plan, we ceased research
and development activities relating to the technology we acquired from CardioSert, and with respect to our SCS and TipCat platforms.
As a result, we terminated the Company’s agreement with CardioSert for that technology, and returned intellectual property relating
to the SCS (ViRob) and TipCat to Technion Research and Development Foundation.
Additional
Information
For
additional information related to our business and operations, please refer to the reports incorporated herein by reference, including
our Annual Report on Form 10-K for the year ended December 31, 2022 and our Quarterly Reports on Form 10-Q for the three months ended
March 31, 2023, June 30, 2023 and September 30, 2023, as described under the caption “Incorporation of Certain Information
by Reference” on page 24 of this prospectus.
Corporate
Information
Our
Company was incorporated on August 2, 1988 in the State of Delaware under the name Cellular Transplants, Inc. The original Certificate
of Incorporation was restated on February 14, 1992 to change the name of the Company to CytoTherapeutics, Inc. On May 24, 2000, the Certificate
of Incorporation as restated was further amended to change the name of the Company to StemCells, Inc. On November 28, 2016, C&RD
Israel Ltd., a wholly-owned subsidiary the Company, completed its merger with and into Microbot Medical Ltd., or Microbot Israel, an
Israeli corporation that then owned our assets and operated our current business, with Microbot Israel surviving as a wholly-owned subsidiary
of ours. We refer to this transaction as the Merger. On November 28, 2016, in connection with the Merger, we changed our name from “StemCells,
Inc.” to Microbot Medical Inc., and each outstanding share of Microbot Israel capital stock was converted into the right to receive
shares of our common stock. In addition, all outstanding options to purchase the ordinary shares of Microbot Israel were assumed by us
and converted into options to purchase shares of the common stock of Microbot Medical Inc. Prior to the Merger, we were a biopharmaceutical
company that operated in one segment, the research, development, and commercialization of stem cell therapeutics and related technologies.
Substantially all of the material assets relating to the stem cell business were sold on November 29, 2016. On November 29, 2016, our
common stock began trading on the Nasdaq Capital Market under the symbol “MBOT”.
Our
principal executive offices are located at 288 Grove Street, Suite 388, Braintree, MA 02184. Microbot also has an executive office at
6 Hayozma Street, Yoqneam, P.O.B. 242, Israel 2069204. Our telephone number is (781) 875-3605. We maintain an Internet website at www.microbotmedical.com.
The information contained on, connected to or that can be accessed via our website is not part of this prospectus. We have included our
website address in this prospectus as an inactive textual reference only and not as an active hyperlink.
Our
Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and all amendments to those reports filed or
furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, are available free
of charge through the investor relations page of our internet website as soon as reasonably practicable after we electronically file
such material with, or furnish it to, the SEC.
Offerings
Under This Prospectus
Under
this prospectus, we may offer shares of our common stock or preferred stock, various series of debt securities and/or warrants or rights
to purchase any such securities, either individually or in units, with a total value of up to $75,000,000, from time to time at prices
and on terms to be determined by market conditions at the time of the offering. This prospectus provides you with a general description
of the securities we may offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus
supplement that will describe the specific amounts, prices and other important terms of the securities, including, to the extent applicable:
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principal amount or aggregate offering price; |
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maturity,
if applicable; |
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rates
and times of payment of interest or dividends, if any; |
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redemption
or conversion terms, if any; |
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voting
or other rights, if any; and |
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conversion
or exercise prices, if any. |
The
prospectus supplement also may add, update or change information contained in this prospectus or in documents we have incorporated by
reference into this prospectus. However, no prospectus supplement will fundamentally change the terms that are set forth in this prospectus
or offer a security that is not registered and described in this prospectus at the time of its effectiveness.
We
may sell the securities directly to investors or to or through agents, underwriters or dealers. We, and our agents or underwriters, reserve
the right to accept or reject all or part of any proposed purchase of securities. If we offer securities through agents or underwriters,
we will include in the applicable prospectus supplement:
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the
names of those agents or underwriters; |
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applicable
fees, discounts and commissions to be paid to them; |
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details
regarding over-allotment options, if any; and |
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the
net proceeds to us. |
THIS
PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF ANY SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
RISK
FACTORS
Investing
in our securities involves significant risk. The prospectus supplement applicable to each offering of our securities may contain a discussion
of the risks applicable to an investment in Microbot. Prior to making a decision about investing in our securities, you should consider
the “Risk Factors” included and incorporated by reference in this prospectus and any applicable prospectus supplement, including
the risk factors incorporated by reference from our most recent Annual Report on Form 10-K, as updated by our Quarterly Reports on Form
10-Q and our other filings with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act filed after such annual report.
The risks and uncertainties we describe are not the only ones facing us. Additional risks not presently known to us, or that we currently
deem immaterial, may also impair our business operations. If any of these risks were to occur, our business, financial condition, or
results of operations would likely suffer. In that event, the trading price of our common stock could decline, and you could lose all
or part of your investment.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and the documents incorporated by reference in this prospectus include forward-looking statements within the meaning of Section
27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Exchange Act that relate to future events
or our future operations or financial performance and involve known and unknown risks, uncertainties and other factors that may cause
our actual results, levels of activity, performance or achievements to differ materially from any future results, levels of activity,
performance or achievements expressed or implied by these forward-looking statements. In some cases, you can identify forward-looking
statements by terminology such as “may”, “should”, “intends”, “expects”, “plans”,
“targets”, “anticipates”, “believes”, “estimates”, “will”, “would”,
“predicts”, “potential”, or “continue” or the negative of these terms or other comparable terminology.
These statements are only predictions and involve known and unknown risks, uncertainties and other factors. The Private Securities Litigation
Reform Act of 1995 provides a “safe harbor” for such forward-looking statements. In order to comply with the terms of the
safe harbor, we note that a variety of factors could cause actual results and experience to differ materially from the anticipated results
or other expectations expressed in the forward-looking statements.
Such
statements include, without limitation, all statements as to expectation or belief and statements as to our future results of operations;
the progress of our research, product development and clinical programs; the need for, and timing of, additional capital and capital
expenditures; partnering prospects; costs of manufacturing products; the protection of, and the need for, additional intellectual property
rights; effects of regulations; the need for additional facilities; and potential market opportunities. Our actual results may vary materially
from those contained in such forward-looking statements because of risks to which we are subject, including the fact that additional
trials will be required to confirm the safety and demonstrate the efficacy of our planned products; uncertainty as to whether the U.S.
Food and Drug Administration, or the FDA, or other regulatory authorities will clear our proposed products for commercialization and
sale; the risk that our planned clinical trials or studies could be substantially delayed beyond their expected dates or cause us to
incur substantial unanticipated costs; uncertainties in our ability to obtain the capital resources needed to continue our current research
and development operations and to conduct the research, preclinical development and clinical trials necessary for regulatory approvals;
the uncertainty regarding the outcome of our clinical trials or studies we may conduct in the future; the uncertainty regarding the validity
and enforceability of the patents underlying our proposed products; the uncertainty as to whether the Company’s preclinical studies
will be replicated in humans; the uncertainty whether any of our proposed products will prove clinically safe and effective; the uncertainty
of whether we will achieve significant revenue from product sales or become profitable; obsolescence of our technologies; competition
from third parties; intellectual property rights of third parties; litigation risks; legal, regulatory and military developments in Israel
including disruptions resulting from new and ongoing hostilities between Israel and the Palestinians, such as employees of Microbot and
its vendors and business partners being called to active military duty; and other risks to which we are subject.
We
have based these forward-looking statements on our current expectations and projections about future events. We believe that the assumptions
and expectations reflected in such forward-looking statements are reasonable, based on information available to us on the date hereof,
but we cannot assure you that these assumptions and expectations will prove to have been correct or that we will take any action that
we may presently be planning. These forward-looking statements are inherently subject to known and unknown risks and uncertainties. We
have included important cautionary statements in this prospectus, in the documents incorporated by reference in this prospectus, and
in the sections in our periodic reports, including our most recent Annual Report on Form 10-K, entitled “Business,”
“Risk Factors,” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations,”
as supplemented by our subsequent Quarterly Reports on Form 10-Q or our Current Reports on Form 8-K, discussing some of the factors that
we believe could cause actual results or events to differ materially from the forward-looking statements that we are making including,
but are not limited to, research and product development uncertainties, regulatory policies and approval requirements, competition from
other similar businesses, market and general economic factors.
In
light of these assumptions, risks and uncertainties, the results and events discussed in the forward-looking statements contained in
this prospectus or in any document incorporated herein by reference might not occur. Investors are cautioned not to place undue reliance
on the forward-looking statements, which speak only as of the date of this prospectus or the date of the document incorporated by reference
in this prospectus. We are not under any obligation, and we expressly disclaim any obligation, to update or alter any forward-looking
statements, whether as a result of new information, future events or otherwise. All subsequent forward-looking statements attributable
to us or to any person acting on our behalf are expressly qualified in their entirety by the cautionary statements contained or referred
to in this section.
USE
OF PROCEEDS
We
cannot assure you that we will receive any proceeds in connection with securities which may be offered pursuant to this prospectus. Unless
otherwise indicated in the applicable prospectus supplement, we intend to use any net proceeds from the sale of securities under this
prospectus for our operations, our further development and commercialization of our product candidates, other general corporate purposes,
which may include, but are not limited to, working capital, intellectual property protection and enforcement, capital expenditures, repayment
of indebtedness and collaborations, and the costs of acquiring, licensing or investing in new and existing businesses, product candidates
and technologies. We have not determined the amounts we plan to spend on any of the areas listed above or the timing of these expenditures.
As a result, our management will have broad discretion to allocate the net proceeds, if any, we receive in connection with securities
offered pursuant to this prospectus for any purpose. Pending application of the net proceeds as described above, we may initially invest
the net proceeds in short-term, investment-grade or interest-bearing securities in accordance with our cash-management policies. Additional
information on the use of proceeds from the sale of securities offered by this prospectus may be set forth in the prospectus supplement
relating to that offering.
PLAN
OF DISTRIBUTION
We
may offer securities under this prospectus from time to time pursuant to public offerings through one or more placement agents or underwriters,
negotiated transactions, block trades or a combination of these methods. We may sell the securities (1) through underwriters or dealers,
(2) through agents, or (3) directly to one or more purchasers, or through a combination of such methods. We may distribute the securities
from time to time in one or more transactions at:
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a
fixed price or prices, which may be changed from time to time; |
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market
prices prevailing at the time of sale; |
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prices
related to the prevailing market prices; or |
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negotiated
prices. |
We
may directly solicit offers to purchase the securities being offered by this prospectus. We may also designate agents to solicit offers
to purchase the securities from time to time, and may enter into arrangements for “at the market,” equity line or similar
transactions. We will name in a prospectus supplement any underwriter or agent involved in the offer or sale of the securities.
If
we utilize a dealer in the sale of the securities being offered by this prospectus, we 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.
If
we utilize an underwriter in the sale of the securities being offered by this prospectus, we will execute an underwriting agreement with
the underwriter at the time of sale, and we will provide the name of any underwriter in the prospectus supplement which the underwriter
will use to make resales of the securities to the public. In connection with the sale of the securities, we, or the purchasers of the
securities for whom the underwriter may act as agent, may compensate the underwriter in the form of underwriting discounts or commissions.
The underwriter may sell the securities to or through dealers, and the underwriter may compensate those dealers in the form of discounts,
concessions or commissions.
With
respect to underwritten public offerings, negotiated transactions and block trades, we will provide in the applicable prospectus supplement
information regarding any compensation we pay to underwriters, dealers or agents in connection with the offering of the securities, and
any discounts, concessions or commissions allowed by underwriters to participating dealers. Underwriters, dealers and agents participating
in the distribution of the securities may be deemed to be underwriters within the meaning of the Securities Act, and any discounts and
commissions received by them and any profit realized by them on resale of the securities may be deemed to be underwriting discounts and
commissions. We may enter into agreements to indemnify underwriters, dealers and agents against civil liabilities, including liabilities
under the Securities Act, or to contribute to payments they may be required to make in respect thereof.
If
so indicated in the applicable prospectus supplement, we will authorize underwriters, dealers or other persons acting as our agents to
solicit offers by certain institutions to purchase securities from us pursuant to delayed delivery contracts providing for payment and
delivery on the date stated in each applicable prospectus supplement. Each contract will be for an amount not less than, and the aggregate
amount of securities sold pursuant to such contracts shall not be less nor more than, the respective amounts stated in each applicable
prospectus supplement. Institutions with whom the contracts, when authorized, may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable institutions and other institutions, but shall in all cases
be subject to our approval. Delayed delivery contracts will not be subject to any conditions except that:
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the
purchase by an institution of the securities covered under that contract shall not at the time of delivery be prohibited under the
laws of the jurisdiction to which that institution is subject; and |
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if
the securities are also being sold to underwriters acting as principals for their own account, the underwriters shall have purchased
such securities not sold for delayed delivery. The underwriters and other persons acting as our agents will not have any responsibility
in respect of the validity or performance of delayed delivery contracts. |
One
or more firms, referred to as “remarketing firms,” may also offer or sell the securities, if a prospectus supplement so indicates,
in connection with a remarketing arrangement upon their purchase. Remarketing firms will act as principals for their own accounts or
as our agents. These remarketing firms will offer or sell the securities in accordance with the terms of the securities. Each prospectus
supplement will identify and describe any remarketing firm and the terms of its agreement, if any, with us and will describe the remarketing
firm’s compensation. Remarketing firms may be deemed to be underwriters in connection with the securities they remarket. Remarketing
firms may be entitled under agreements that may be entered into with us to indemnification by us against certain civil liabilities, including
liabilities under the Securities Act, and may be customers of, engage in transactions with or perform services for us in the ordinary
course of business.
Certain
underwriters may use this prospectus and any accompanying prospectus supplement for offers and sales related to market-making transactions
in the securities. These underwriters may act as principal or agent in these transactions, and the sales will be made at prices related
to prevailing market prices at the time of sale. Any underwriters involved in the sale of the securities may qualify as “underwriters”
within the meaning of Section 2(a)(11) of the Securities Act. In addition, the underwriters’ commissions, discounts or concessions
may qualify as underwriters’ compensation under the Securities Act and the rules of the Financial Industry Regulatory Authority,
Inc., or FINRA.
Shares
of our common stock sold pursuant to the registration statement of which this prospectus is a part will be authorized for listing and
trading on The Nasdaq Capital Market. The applicable prospectus supplement will contain information, where applicable, as to any other
listing, if any, on The Nasdaq Capital Market or any securities market or other securities exchange of the securities covered by the
prospectus supplement. Underwriters may make a market in our common stock, but will not be obligated to do so and may discontinue any
market making at any time without notice. We can make no assurance as to the liquidity of or the existence, development or maintenance
of trading markets for any of the securities.
In
order to facilitate the offering of the securities, certain persons participating in the offering may engage in transactions that stabilize,
maintain or otherwise affect the price of the securities. This may include over-allotments or short sales of the securities, which involve
the sale by persons participating in the offering of more securities than we sold to them. In these circumstances, these persons would
cover such over-allotments or short positions by making purchases in the open market or by exercising their over-allotment option. In
addition, these persons may stabilize or maintain the price of the securities by bidding for or purchasing the applicable security in
the open market or by imposing penalty bids, whereby selling concessions allowed to dealers participating in the offering may be reclaimed
if the securities sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may be
to stabilize or maintain the market price of the securities at a level above that which might otherwise prevail in the open market. These
transactions may be discontinued at any time.
The
underwriters, dealers and agents may engage in other transactions with us, or perform other services for us, in the ordinary course of
their business.
DESCRIPTION
OF COMMON STOCK
We
are authorized to issue 60,000,000 shares of common stock, par value $0.01 per share. As of November 14, 2023 we had 11,707,317
shares of common stock issued and outstanding and approximately 100 common stockholders of record. The following summary of certain provisions
of our common stock does not purport to be complete. You should refer to our certificate of incorporation and our bylaws, copies
of which are on file with the SEC as exhibits to previous SEC filings. Please refer to “Where
You Can Find More Information” below for directions on obtaining these documents. The summary below is also qualified
by provisions of applicable law.
General
Holders
of common stock are entitled to one vote for each share held on all matters submitted to a vote of stockholders and do not have cumulative
voting rights. Holders of common stock are entitled to receive proportionately any dividends as may be declared by our board of directors,
out of funds that we may legally use to pay dividends, subject to any preferential dividend rights of any outstanding series of preferred
stock or series of preferred stock that we may designate and issue in the future. All shares of common stock outstanding as of the date
of this prospectus and, upon issuance and sale, all shares of common stock that we may offer pursuant to this prospectus, will be fully
paid and nonassessable.
In
the event of our liquidation or dissolution, the holders of common stock are entitled to receive proportionately our net assets available
for distribution to stockholders after the payment of all debts and other liabilities and subject to the prior rights of any outstanding
preferred stock. Holders of common stock have no preemptive, subscription, redemption or conversion rights. There are no redemption or
sinking fund provisions applicable to the common stock.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is Computershare Trust Company, N.A.
Nasdaq
Capital Market
Our
common stock is listed for quotation on the Nasdaq Capital Market under the symbol “MBOT.”
DESCRIPTION
OF PREFERRED STOCK
We
have authority to issue 1,000,000 shares of preferred stock, par value $0.01 per share. As of the date of this prospectus, no shares
of our preferred stock were outstanding or designated.
The
following summary of certain provisions of our preferred stock does not purport to be complete. You should refer to our certificate of
incorporation and by-laws, as amended to date, copies of which are on file with the SEC as exhibits
to previous SEC filings. Please refer to “Where You Can Find More Information” below for directions on obtaining these
documents. The summary below is also qualified by provisions of applicable law.
Our
board of directors is authorized, without stockholder approval, from time to time, to issue shares of preferred stock in series and may,
at the time of issuance, subject to Delaware law and our certificate of incorporation and by-laws, determine the rights, preferences
and limitations of each series, including voting rights, dividend rights and redemption and liquidation preferences. Satisfaction of
any dividend preferences of outstanding shares of preferred stock would reduce the amount of funds available for the payment of dividends
on shares of our common stock. Holders of shares of preferred stock may be entitled to receive a preference payment in the event of any
liquidation, dissolution or winding-up of our company before any payment is made to the holders of shares of our common stock. In some
circumstances, the issuance of shares of preferred stock may render more difficult or tend to discourage a merger, tender offer or proxy
contest, the assumption of control by a holder of a large block of our securities or the removal of incumbent management. Upon the affirmative
vote of our board of directors, without stockholder approval, we may issue shares of preferred stock with voting and conversion rights
which could adversely affect the holders of shares of our common stock.
If
we offer a specific series of preferred stock under this prospectus, we will describe the terms of the preferred stock in the prospectus
supplement for such offering and will file a copy of the certificate establishing the terms of the preferred stock with the SEC. To the
extent required, this description will include:
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the
title and stated value; |
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the
number of shares offered, the liquidation preference per share and the purchase price; |
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the
dividend rate(s), period(s) and/or payment date(s), or method(s) of calculation for such dividends; |
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whether
dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate; |
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the
procedures for any auction and remarketing, if any; |
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the
provisions for a sinking fund, if any; |
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the
provisions for redemption, if applicable; |
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any
listing of the preferred stock on any securities exchange or market; |
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whether
the preferred stock will be convertible into our common stock, and, if applicable, the conversion price (or how it will be calculated)
and conversion period; |
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whether
the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange price (or how it will be calculated)
and exchange period; |
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voting
rights, if any, of the preferred stock; |
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a
discussion of any material and/or special U.S. federal income tax considerations applicable to the preferred stock; |
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the
relative ranking and preferences of the preferred stock as to dividend rights and rights upon liquidation, dissolution or winding
up of the affairs of the Company; and |
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any
material limitations on 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 upon liquidation, dissolution or winding up of the Company. |
The
preferred stock offered by this prospectus will, when issued, be fully paid and nonassessable and will not have, or be subject to, any
preemptive or similar rights.
Transfer
Agent and Registrar
The
transfer agent and registrar for any series or class of preferred stock will be set forth in the applicable prospectus supplement.
DESCRIPTION
OF WARRANTS
We
may issue warrants to purchase shares of our common stock, preferred stock and/or debt securities in one or more series together with
other securities or separately, as described in the applicable prospectus supplement. Below is a description of certain general terms
and provisions of the warrants that we may offer. Particular terms of the warrants will be described in the warrant agreements and the
prospectus supplement to the warrants.
The
applicable prospectus supplement will contain, where applicable, the following terms of, and other information relating to, the warrants:
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the
specific designation and aggregate number of, and the price at which we will issue, the warrants; |
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the
currency or currency units in which the offering price, if any, and the exercise price are payable; |
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the
designation, amount and terms of the securities purchasable upon exercise of the warrants; |
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if
applicable, the exercise price for shares of our common stock and the number of shares of common stock to be received upon exercise
of the warrants; |
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if
applicable, the exercise price for shares of our preferred stock, the number of shares of preferred stock to be received upon exercise,
and a description of that series of our preferred stock; |
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if
applicable, the exercise price for our debt securities, the amount of debt securities to be received upon exercise, and a description
of that series of debt securities; |
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the
date on which the right to exercise the warrants will begin and the date on which that right will expire or, if you may not continuously
exercise the warrants throughout that period, the specific date or dates on which you may exercise the warrants; |
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whether
the warrants will be issued in fully registered form or bearer form, in definitive or global form or in any combination of these
forms, although, in any case, the form of a warrant included in a unit will correspond to the form of the unit and of any security
included in that unit; |
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any
applicable material U.S. federal income tax consequences; |
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the
identity of the warrant agent for the warrants and of any other depositaries, execution or paying agents, transfer agents, registrars
or other agents; |
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the
proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants on any securities exchange; |
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if
applicable, the date from and after which the warrants and the common stock, preferred stock and/or debt securities will be separately
transferable; |
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if
applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
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information
with respect to book-entry procedures, if any; |
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the
anti-dilution provisions of the warrants, if any; |
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any
redemption or call provisions; |
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whether
the warrants are to be sold separately or with other securities as parts of units; and |
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any
additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. |
Outstanding
Warrants
As
of November 14, 2023, we had outstanding:
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1,022,495
shares of our common stock issuable upon the exercise of outstanding series A preferred investment options expiring in October 2027,
originally at an exercise price per share of $4.64 but amended to a reduced exercise price per share of $2.20 in connection with
the offering that was consummated on May 24, 2023; |
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51,125
shares of our common stock issuable upon the exercise of outstanding warrants expiring in October 2027, at an exercise price per
share of $6.1125; |
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32,778
shares of our common stock issuable upon the exercise of outstanding warrants expiring in November 2026, at an exercise price per
share of $2.75; |
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60,476
shares of our common stock issuable upon the exercise of outstanding warrants expiring in November 2026, at an exercise price per
share of $2.75; |
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35,088
shares of our common stock issuable upon the exercise of outstanding warrants expiring in June 2028, at an exercise price
per share of $2.6719; |
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350,878
shares of our common stock issuable upon the exercise of outstanding series C preferred investment options expiring in December 2028,
at an exercise price per share of $2.075; |
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312,309
shares of our common stock issuable upon the exercise of outstanding series D preferred investment options expiring in December 2028,
at an exercise price per share of $3.19; and |
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31,231
shares of our common stock issuable upon the exercise of outstanding warrants expiring in June 2028, at an exercise price per share
of $4.0625. |
Transfer
Agent and Registrar
The
transfer agent and registrar for any warrants will be set forth in the applicable prospectus supplement.
DESCRIPTION
OF DEBT SECURITIES
The
following description, together with the additional information we include in any applicable prospectus supplements, summarizes the material
terms and provisions of the debt securities that we may offer under this prospectus. While the terms we have summarized below will apply
generally to any future debt securities we may offer pursuant to this prospectus, we will describe the particular terms of any debt securities
that we may offer in more detail in the applicable prospectus supplement. If we so indicate in a prospectus supplement, the terms of
any debt securities offered under such prospectus supplement may differ from the terms we describe below, and to the extent the terms
set forth in a prospectus supplement differ from the terms described below, the terms set forth in the prospectus supplement shall control.
We
may sell from time to time, in one or more offerings under this prospectus, debt securities, which may be senior or subordinated. We
will issue any such senior debt securities under a senior indenture that we will enter into with a trustee to be named in the senior
indenture. We will issue any such subordinated debt securities under a subordinated indenture, which we will enter into with a trustee
to be named in the subordinated indenture. We have filed forms of these documents as exhibits to the registration statement, of which
this prospectus is a part. We use the term “indentures” to refer to either the senior indenture or the subordinated indenture,
as applicable. The indentures will be qualified under the Trust Indenture Act of 1939, or the Trust Indenture Act, as in effect on the
date of the indenture. We use the term “debenture trustee” to refer to either the trustee under the senior indenture or the
trustee under the subordinated indenture, as applicable.
The
following summaries of material provisions of the senior debt securities, the subordinated debt securities and the indentures are subject
to, and qualified in their entirety by reference to, all the provisions of the indenture applicable to a particular series of debt securities.
General
Each
indenture provides that debt securities may be issued from time to time in one or more series and may be denominated and payable in foreign
currencies or units based on or relating to foreign currencies. Neither the senior indenture nor any subordinated indenture limits the
amount of debt securities that may be issued thereunder, and each indenture provides that the specific terms of any series of debt securities
shall be set forth in, or determined pursuant to, an authorizing resolution and/or a supplemental indenture, if any, relating to such
series.
We
will describe in each prospectus supplement the following terms relating to a series of debt securities:
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the
title or designation; |
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the
aggregate principal amount and any limit on the amount that may be issued; |
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the
currency or units based on or relating to currencies in which debt securities of such series are denominated and the currency or
units in which principal or interest or both will or may be payable; |
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whether
we will issue the series of debt securities in global form, the terms of any global securities and who the depositary will be; |
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the
maturity date and the date or dates on which principal will be payable; |
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the
interest rate, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue,
the date or dates interest will be payable and the record dates for interest payment dates or the method for determining such dates; |
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whether
or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
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the
terms of the subordination of any series of subordinated debt; |
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the
place or places where payments will be payable; |
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our
right, if any, to defer payment of interest and the maximum length of any such deferral period; |
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the
date, if any, after which, and the price at which, we may, at our option, redeem the series of debt securities pursuant to any optional
redemption provisions; |
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the
date, if any, on which, and the price at which we are obligated, pursuant to any mandatory sinking fund provisions or otherwise,
to redeem, or at the holder’s option to purchase, the series of debt securities; |
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whether
the indenture will restrict our ability to pay dividends, or will require us to maintain any asset ratios or reserves; |
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whether
we will be restricted from incurring any additional indebtedness; |
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a
discussion on any material or special U.S. federal income tax considerations applicable to a series of debt securities; |
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the
denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple
thereof; and |
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any
other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities. |
We
may issue debt securities that provide for an amount less than their stated principal amount to be due and payable upon declaration of
acceleration of their maturity pursuant to the terms of the indenture. We will provide you with information on the federal income tax
considerations and other special considerations applicable to any of these debt securities in the applicable prospectus supplement.
Conversion
or Exchange Rights
We
will set forth in the prospectus supplement the terms, if any, 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 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; No Protection in Event of a Change of Control or Highly Leveraged Transaction
The
indentures do not contain any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose
of all or substantially all of our assets. However, any successor to or acquirer of such assets must assume all of our obligations under
the indentures or the debt securities, as appropriate.
Unless
we state otherwise in the applicable prospectus supplement, the debt securities will not contain any provisions that may afford holders
of the debt securities protection in the event we have a change of control or in the event of a highly leveraged transaction (whether
or not such transaction results in a change of control), which could adversely affect holders of debt securities.
Events
of Default Under the Indenture
The
following are events of default under the indentures with respect to any series of debt securities that we may issue:
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if
we fail to pay interest when due and our failure continues for 90 days and the time for payment has not been extended or deferred; |
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if
we fail to pay the principal, or premium, if any, when due and the time for payment has not been extended or delayed; |
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if
we fail to observe or perform any other covenant set forth in the debt securities of such series or the applicable indentures, other
than a covenant specifically relating to and for the benefit of holders of another series of debt securities, and our failure continues
for 90 days after we receive written notice from the debenture trustee or holders of not less than a majority in aggregate principal
amount of the outstanding debt securities of the applicable series; and |
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if
specified events of bankruptcy, insolvency or reorganization occur as to us. |
No
event of default with respect to a particular series of debt securities (except as to certain events of bankruptcy, insolvency or reorganization)
necessarily constitutes an event of default with respect to any other series of debt securities. The occurrence of an event of default
may constitute an event of default under any bank credit agreements we may have in existence from time to time. In addition, the occurrence
of certain events of default or acceleration under the indenture may constitute an event of default under certain of our other indebtedness
outstanding from time to time.
If
an event of default with respect to debt securities of any series at the time outstanding occurs and is continuing, then the trustee
or the holders of not less than a majority in principal amount of the outstanding debt securities of that series may, by a notice in
writing to us (and to the debenture trustee if given by the holders), declare to be due and payable immediately the principal (or, if
the debt securities of that series are discount securities, that portion of the principal amount as may be specified in the terms of
that series) of and premium and accrued and unpaid interest, if any, on all debt securities of that series. Before a judgment or decree
for payment of the money due has been obtained with respect to debt securities of any series, the holders of a majority in principal
amount of the outstanding debt securities of that series (or, at a meeting of holders of such series at which a quorum is present, the
holders of a majority in principal amount of the debt securities of such series represented at such meeting) may rescind and annul the
acceleration if all events of default, other than the non-payment of accelerated principal, premium, if any, and interest, if any, with
respect to debt securities of that series, have been cured or waived as provided in the applicable indenture (including payments or deposits
in respect of principal, premium or interest that had become due other than as a result of such acceleration). We refer you to the prospectus
supplement relating to any series of debt securities that are discount securities for the particular provisions relating to acceleration
of a portion of the principal amount of such discount securities upon the occurrence of an event of default.
Subject
to the terms of the indentures, if an event of default under an indenture shall occur and be continuing, the debenture 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 debenture 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 debenture trustee, or exercising any trust or power conferred on the debenture
trustee, with respect to the debt securities of that series, provided that:
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direction so given by the holder is not in conflict with any law or the applicable indenture; and |
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subject
to its duties under the Trust Indenture Act, the debenture 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 only have the right to institute a proceeding under the indentures or to appoint a receiver
or trustee, or to seek other remedies if:
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the
holder previously has given written notice to the debenture trustee of a continuing event of default with respect to that series; |
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the
holders of at least a majority in aggregate principal amount of the outstanding debt securities of that series have made written
request, and such holders have offered reasonable indemnity to the debenture trustee to institute the proceeding as trustee; and |
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the
debenture 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 (or at a meeting of holders of such series at which a quorum is present, the holders
of a majority in principal amount of the debt securities of such series represented at such meeting) other conflicting directions
within 60 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 applicable debenture trustee regarding our compliance with specified covenants in the applicable
indenture.
Modification
of Indenture; Waiver
The
debenture trustee and we may change the applicable indenture without the consent of any holders with respect to specific matters, including:
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to
fix any ambiguity, defect or inconsistency in the indenture; and |
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to
change anything that does not materially adversely affect the interests of any holder of debt securities of any series issued pursuant
to such indenture. |
In
addition, under the indentures, the rights of holders of a series of debt securities may be changed by us and the debenture 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
(or, at a meeting of holders of such series at which a quorum is present, the holders of a majority in principal amount of the debt securities
of such series represented at such meeting) that is affected. However, the debenture trustee and we may make the following changes only
with the consent of each holder of any outstanding debt securities affected:
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extending
the fixed maturity of the series of debt securities; |
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reducing
the principal amount, reducing the rate of or extending the time of payment of interest, or any premium payable upon the redemption
of any debt securities; |
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reducing
the principal amount of discount securities payable upon acceleration of maturity; |
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making
the principal of or premium or interest on any debt security payable in currency other than that stated in the debt security; or |
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reducing
the percentage of debt securities, the holders of which are required to consent to any amendment or waiver. |
Except
for certain specified provisions, the holders of at least a majority in principal amount of the outstanding debt securities of any series
(or, at a meeting of holders of such series at which a quorum is present, the holders of a majority in principal amount of the debt securities
of such series represented at such meeting) may on behalf of the holders of all debt securities of that series waive our compliance with
provisions of the indenture. The holders of a majority in principal amount of the outstanding debt securities of any series may on behalf
of the holders of all the debt securities of such series waive any past default under the indenture with respect to that series and its
consequences, except a default in the payment of the principal of, premium or any interest on any debt security of that series or in
respect of a covenant or provision, which cannot be modified or amended without the consent of the holder of each outstanding debt security
of the series affected; provided, however, that the holders of a majority in principal amount of the outstanding debt securities of any
series may rescind an acceleration and its consequences, including any related payment default that resulted from the acceleration.
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 obligations to:
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register
the transfer or exchange of debt securities of the series; |
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replace
stolen, lost or mutilated debt securities of the series; |
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maintain
paying agencies; |
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hold
monies for payment in trust; |
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compensate
and indemnify the trustee; and |
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appoint
any successor trustee. |
In
order to exercise our rights to be discharged with respect to a series, we must deposit with the trustee money or government obligations
sufficient to pay all the principal of, the 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 otherwise specify in the applicable
prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indentures provide 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 or another depositary named by us and identified in a prospectus supplement with respect to that series.
At
the option of the holder, subject to the terms of the indentures 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 indentures 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 or in the applicable indenture, we will make 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:
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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 |
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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 Debenture Trustee
The
debenture trustee, other than during the occurrence and continuance of an event of default under the applicable 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 debenture trustee under such indenture 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 debenture trustee is under no obligation to exercise any of the powers given
it by the indentures 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 which
we will mail to the holder. Unless we otherwise indicate in a prospectus supplement, we will designate the corporate trust office of
the debenture trustee in the City of New York 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 debenture trustee for the payment of the principal of or any premium or interest on any debt securities
which 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 security thereafter may look only to us for payment thereof.
Governing
Law
The
indentures and the debt securities will be governed by and construed in accordance with the laws of the State of New York, except to
the extent that the Trust Indenture Act is applicable.
Subordination
of Subordinated Debt Securities
Our
obligations pursuant to any subordinated debt securities will be unsecured and will be subordinate and junior in priority of payment
to certain of our other indebtedness to the extent described in a prospectus supplement. The subordinated indenture does not limit the
amount of senior indebtedness we may incur. It also does not limit us from issuing any other secured or unsecured debt.
DESCRIPTION
OF RIGHTS
General
We
may issue rights to our stockholders to purchase shares of our common stock, preferred stock or the other securities described in this
prospectus. We may offer rights separately or together with one or more additional rights, debt securities, preferred stock, common stock
or warrants, or any combination of those securities in the form of units, as described in the applicable prospectus supplement. Each
series of rights will be issued under a separate rights agreement to be entered into between us and a bank or trust company, as rights
agent. The rights agent will act solely as our agent in connection with the certificates relating to the rights of the series of certificates
and will not assume any obligation or relationship of agency or trust for or with any holders of rights certificates or beneficial owners
of rights. The following description sets forth certain general terms and provisions of the rights to which any prospectus supplement
may relate. The particular terms of the rights to which any prospectus supplement may relate and the extent, if any, to which the general
provisions may apply to the rights so offered will be described in the applicable prospectus supplement. To the extent that any particular
terms of the rights, rights agreement or rights certificates described in a prospectus supplement differ from any of the terms described
below, then the terms described below will be deemed to have been superseded by that prospectus supplement. We encourage you to read
the applicable rights agreement and rights certificate for additional information before you decide whether to purchase any of our rights.
We
will provide in a prospectus supplement the following terms of the rights being issued:
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the
date of determining the stockholders entitled to the rights distribution; |
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the
aggregate number of shares of common stock, preferred stock or other securities purchasable upon exercise of the rights; |
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the
exercise price; |
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the
aggregate number of rights issued; |
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whether
the rights are transferrable and the date, if any, on and after which the rights may be separately transferred; |
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the
date on which the right to exercise the rights will commence, and the date on which the right to exercise the rights will expire; |
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the
method by which holders of rights will be entitled to exercise; |
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the
conditions to the completion of the offering, if any; |
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the
withdrawal, termination and cancellation rights, if any; |
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whether
there are any backstop or standby purchaser or purchasers and the terms of their commitment, if any; |
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whether
stockholders are entitled to oversubscription rights, if any; |
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any
applicable material U.S. federal income tax considerations; and |
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any
other terms of the rights, including terms, procedures and limitations relating to the distribution, exchange and exercise of the
rights, as applicable. |
Each
right will entitle the holder of rights to purchase for cash the principal amount of shares of common stock, preferred stock or other
securities at the exercise price provided in the applicable prospectus supplement. Rights may be exercised at any time up to the close
of business on the expiration date for the rights provided in the applicable prospectus supplement.
Holders
may exercise rights as described in the applicable prospectus supplement. Upon receipt of payment and the rights certificate properly
completed and duly executed at the corporate trust office of the rights agent or any other office indicated in the prospectus supplement,
we will, as soon as practicable, forward the shares of common stock, preferred stock or other securities, as applicable, purchasable
upon exercise of the rights. If less than all of the rights issued in any rights offering are exercised, we may offer any unsubscribed
securities directly to persons other than stockholders, to or through agents, underwriters or dealers or through a combination of such
methods, including pursuant to standby arrangements, as described in the applicable prospectus supplement.
Rights
Agent
The
rights agent for any rights we offer will be set forth in the applicable prospectus supplement.
DESCRIPTION
OF UNITS
The
following description, together with the additional information that we include in any applicable prospectus supplements summarizes the
material terms and provisions of the units that we may offer under this prospectus. While the terms we have summarized below will apply
generally to any units that we may offer under this prospectus, we will describe the particular terms of any series of units in more
detail in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement may differ from the terms
described below.
We
will incorporate by reference from reports that we file with the SEC, the form of unit agreement that describes the terms of the series
of units we are offering, and any supplemental agreements, before the issuance of the related series of units. The following summaries
of material terms and provisions of the units are subject to, and qualified in their entirety by reference to, all the provisions of
the unit agreement and any supplemental agreements applicable to a particular series of units. We urge you to read the applicable prospectus
supplements related to the particular series of units that we may offer under this prospectus, as well as any related free writing prospectuses
and the complete unit agreement and any supplemental agreements that contain the terms of the units.
General
We
may issue units consisting of common stock, preferred stock, one or more debt securities, warrants, rights for the purchase of common
stock, preferred stock and/or debt securities in one or more series, in any combination. Each unit will be issued so that the holder
of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations
of a holder of each security included in the unit. The unit agreement under which a unit is issued may provide that the securities included
in the unit may not be held or transferred separately, at any time or at any time before a specified date.
We
will describe in the applicable prospectus supplement the terms of the series of units being offered, including:
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the
designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those
securities may be held or transferred separately; |
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any
provisions of the governing unit agreement that differ from those described below; and |
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any
provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units. |
The
provisions described in this section, as well as those set forth in any prospectus supplement or as described under “Description
of Common Stock,” “Description of Preferred Stock,” “Description of Debt Securities,”
“Description of Warrants” and “Description of Rights” will apply to each unit, as applicable, and
to any common stock, preferred stock, debt security, warrant or right included in each unit, as applicable.
Unit
Agent
The
name and address of the unit agent for any units we offer will be set forth in the applicable prospectus supplement.
Issuance
in Series
We
may issue units in such amounts and in such numerous distinct series as we determine.
Enforceability
of Rights by Holders of Units
Each
unit agent will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship of agency
or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit
agent will have no duty or responsibility in case of any default by us under the applicable unit agreement or unit, including any duty
or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the
consent of the related unit agent or the holder of any other unit, enforce by appropriate legal action its rights as holder under any
security included in the unit.
CERTAIN
PROVISIONS OF DELAWARE LAW AND OF THE COMPANY’S CERTIFICATE OF
INCORPORATION AND BYLAWS
Anti-Takeover
Provisions
Delaware
Law
We
are subject to the anti-takeover provisions of Section 203 of the Delaware General Corporation Law, or DGCL. Section 203 prohibits a
publicly-held 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 the business
combination is, or the transaction in which the person became an interested stockholder was, approved in a prescribed manner or another
prescribed exception applies. For purposes of Section 203, a “business combination” is defined broadly to include a merger,
asset sale or other transaction resulting in a financial benefit to the interested stockholder, and, subject to certain exceptions, an
“interested stockholder” is a person who, together with his or her affiliates and associates, owns, or within three years
prior, did own, 15% or more of the corporation’s voting stock.
Staggered
Board
Our
restated certificate of incorporation and restated by-laws provide for the Board of Directors to be divided into three classes serving
staggered terms. At each annual meeting of stockholders, directors elected to succeed those directors whose terms expire are elected
for a three-year term of office. All directors elected to our classified Board of Directors will serve until the election and qualification
of their respective successors or their earlier resignation or removal. The Board of Directors is authorized to create new directorships
and to fill such positions so created and is permitted to specify the class to which any such new position is assigned. The person filling
such position would serve for the term applicable to that class. The Board of Directors (or its remaining members, even if less than
a quorum) is also empowered to fill vacancies on the Board of Directors occurring for any reason for the remainder of the term of the
class of directors in which the vacancy occurred. Members of the Board of Directors may only be removed for cause and only by the affirmative
vote of 80% of the outstanding voting stock. These provisions are likely to increase the time required for stockholders to change the
composition of the Board of Directors. For example, in general, at least two annual meetings will be necessary for stockholders to effect
a change in a majority of the members of the Board of Directors. The provision for a classified board could prevent a party who acquires
control of a majority of our outstanding common stock from obtaining control of our Board of Directors until our second annual stockholders
meeting following the date the acquirer obtains the controlling stock interest. The classified board provision could have the effect
of discouraging a potential acquirer from making a tender offer or otherwise attempting to obtain control of us and could increase the
likelihood that incumbent directors will retain their positions.
Advance
notice provisions for stockholder proposals
Our
restated by-laws establish an advance notice procedure for stockholder nominations of candidates for election to our Board of Directors,
as well as procedures for including proposed nominations at special meetings at which directors are to be elected. Stockholders at our
annual meeting may only consider proposals or nominations specified in the notice of meeting or brought before the meeting by or at the
direction of our board or by a stockholder who was a stockholder of record on the record date for the meeting, who is entitled to vote
at the meeting and who has given to our secretary timely written notice, in proper form, of the stockholder’s intention to bring
that business before the meeting, and who has complied with the procedures and requirements set forth in the by-laws. Although the by-laws
do not give the Board of Directors the power to approve or disapprove stockholder nominations of candidates or proposals regarding other
business to be conducted at a special or annual meeting, these by-laws may have the effect of precluding the conduct of some business
at a meeting if the proper procedures are not followed or may discourage or defer a potential acquirer from conducting a solicitation
of proxies to elect its own slate of directors or otherwise attempting to obtain control of Microbot.
Special
meetings of stockholders
Special
meetings of the stockholders may be called only by the Board of Directors, president or secretary upon the application of a majority
of the directors. Stockholders are not permitted to call a special meeting or to require our Board of Directors to call a special meeting.
No
stockholder action by written consent
Our
restated certificate of incorporation and restated by-laws do not permit our stockholders to act by written consent. As a result, any
action to be effected by our stockholders must be effected at a duly called annual or special meeting of the stockholders.
Super-majority
stockholder vote required for certain actions.
The
DGCL provides generally that the affirmative vote of a majority of the shares entitled to vote on any matter is required to amend a corporation’s
certificate of incorporation or by-laws, unless the corporation’s certificate of incorporation or by-laws, as the case may be,
requires a greater percentage. Our restated certificate of incorporation requires the affirmative vote of the holders of at least 80%
of our outstanding voting stock to amend or repeal certain provisions of our restated certificate of incorporation. This 80% stockholder
vote would be in addition to any separate class vote that might in the future be required pursuant to the terms of any preferred stock
that might then be outstanding. In addition, an 80% vote is also required for any amendment to, or repeal of, our restated by-laws by
the stockholders. Our restated by-laws may be amended or repealed by a vote of a majority of the total number of authorized directors.
Limitation
of Liability and Indemnification
Our
restated certificate of incorporation and our amended and restated bylaws provide that each person who was or is made a party or is threatened
to be made a party to or is otherwise involved (including, without limitation, as a witness) in any action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that he or she is or was one of our directors or officers or
is or was serving at our request as a director, officer, or trustee of another corporation, or of a partnership, joint venture, trust
or other enterprise, including service with respect to an employee benefit plan, whether the basis of such proceeding is alleged action
in an official capacity as a director, officer or trustee or in any other capacity while serving as a director, officer or trustee, shall
be indemnified and held harmless by us to the fullest extent authorized by the DGCL against all expense, liability and loss (including
attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered
by such.
Section
145 of the DGCL permits a corporation to indemnify any director or officer of the corporation against expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with any action, suit or proceeding
brought by reason of the fact that such person is or was a director or officer of the corporation, if such person acted in good faith
and in a manner that he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, and, with respect
to any criminal action or proceeding, if he or she had no reasonable cause to believe his or her conduct was unlawful. In a derivative
action (i.e., one brought by or on behalf of the corporation), indemnification may be provided only for expenses actually and reasonably
incurred by any director or officer in connection with the defense or settlement of such an action or suit if such person acted in good
faith and in a manner that he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, except that
no indemnification shall be provided if such person shall have been adjudged to be liable to the corporation, unless and only to the
extent that the Delaware Chancery Court or the court in which the action or suit was brought shall determine that such person is fairly
and reasonably entitled to indemnity for such expenses despite such adjudication of liability.
Pursuant
to Section 102(b)(7) of the DGCL, Article Eighth of our restated certificate of incorporation eliminates the liability of a director
to us or our stockholders for monetary damages for such a breach of fiduciary duty as a director, except for liabilities arising:
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any breach of the director’s duty of loyalty to us or our stockholders; |
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from
acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; |
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under
Section 174 of the DGCL; and |
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We
have entered into indemnification agreements with our directors and certain officers, in addition to the indemnification provided in
our restated certificate of incorporation and our amended and restated bylaws, and intend to enter into indemnification agreements with
any new directors and executive officers in the future. We have purchased and intend to maintain insurance on behalf of any person who
is or was a director or officer against any loss arising from any claim asserted against him or her and incurred by him or her in any
such capacity, subject to certain exclusions.
The
foregoing discussion of our restated certificate of incorporation, amended and restated bylaws, indemnification agreements, indemnity
agreement, and Delaware law is not intended to be exhaustive and is qualified in its entirety by such restated certificate of incorporation,
amended and restated bylaws, indemnification agreements, indemnity agreement, or law.
LEGAL
MATTERS
The
validity of the shares being offered under this prospectus by us will be passed upon for us by Ruskin Moscou Faltischek, P.C., Uniondale,
New York.
EXPERTS
The
consolidated financial statements of Microbot Medical Inc. as of December 31, 2022 and 2021, and for each of the two years in the period
ended December 31, 2022, incorporated by reference in this Prospectus, have been audited by Brightman Almagor Zohar and Co., a Firm in
the Deloitte Global Network, an independent registered public accounting firm, as stated in their report. Such consolidated financial
statements are incorporated by reference in reliance upon the report of such firm given their authority as experts in accounting and
auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We
are subject to the reporting requirements of the Exchange Act and file annual, quarterly and current reports, proxy statements and other
information with the SEC. SEC filings are available at the SEC’s website at http://www.sec.gov.
This
prospectus is only part of a registration statement on Form S-3 that we have filed with the SEC under the Securities Act and therefore
omits certain information contained in the registration statement. We have also filed exhibits and schedules with the registration statement
that are excluded from this prospectus, and you should refer to the applicable exhibit or schedule for a complete description of any
statement referring to any contract or other document.
The
registration statement and the documents referred to below under “Incorporation of Certain Information by Reference” are
also available on our website at http://www.microbotmedical.com. We have not incorporated by reference into this prospectus the information
on our website, and you should not consider it to be a part of this prospectus.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to “incorporate by reference” information that we file with them. Incorporation by reference allows us to disclose
important information to you by referring you to those other documents. The information incorporated by reference is an important part
of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. We filed
a registration statement on Form S-3 under the Securities Act with the SEC with respect to the securities we may offer pursuant to this
prospectus. This prospectus omits certain information contained in the registration statement, as permitted by the SEC. You should refer
to the registration statement, including the exhibits, for further information about us and the securities we may offer pursuant to this
prospectus. Statements in this prospectus regarding the provisions of certain documents filed with, or incorporated by reference in,
the registration statement are not necessarily complete and each statement is qualified in all respects by that reference. Copies of
all or any part of the registration statement, including the documents incorporated by reference or the exhibits, are available at the
SEC’s website at http://www.sec.gov. The documents we are incorporating by reference are:
|
● |
our
Annual Report on Form 10-K for the year ended December 31, 2022 filed with the SEC on March 31, 2023; |
|
|
|
|
● |
our
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2023, June 30, 2023 and September 30, 2023 that we filed with the
SEC on May 17, 2023, August 14, 2023 and November 14, 2023; |
|
|
|
|
● |
our
Current Reports on Form 8-K, filed with the SEC on: January
23, 2023, May
18, 2023, May
22, 2023, May
23, 2023, May
24, 2023, May
25, 2023, May
31, 2023, June
2, 2023, June
6, 2023, June
16, 2023, June
22, 2023, June
29, 2023, September
5, 2023, October
17, 2023, October
19, 2023, October
24, 2023, October
31, 2023, November
6, 2023, November
8, 2023, November
13, 2023 and November 14, 2023 (except in each case for information contained therein which is furnished rather than filed); |
|
|
|
|
● |
our Definitive Proxy Statement on Schedule 14A, filed
with the SEC on September 19, 2023 (but only with respect to information required by Part III of our Annual Report on Form 10-K for
the fiscal year ended December 31, 2022, which information shall update and supersede information included in Part III of our Annual
Report on Form 10-K for the fiscal year ended December 31, 2022); and |
|
|
|
|
● |
the
description of our common stock contained in our registration statement on Form 8-A filed August 3, 1998, under the Exchange Act,
including any amendment or report filed for the purpose of updating such description; and |
|
|
|
|
● |
all
reports and other documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the
date of this prospectus and prior to the termination of this offering. |
The
SEC file number for each of the documents listed above is 000-19871.
In
addition, all reports and other documents filed by us pursuant to the Exchange Act after the date of the initial registration statement
and prior to effectiveness of the registration statement shall be deemed to be incorporated by reference into this prospectus.
Any
statement contained in this prospectus or in a document incorporated or deemed to be incorporated by reference into this prospectus will
be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or
any other subsequently filed document that is deemed to be incorporated by reference into this prospectus modifies or supersedes the
statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this
prospectus.
We
will provide, upon written or oral request, without charge to each person, including any beneficial owner, to whom a copy of this prospectus
is delivered, a copy of any or all of the information incorporated herein by reference (exclusive of exhibits to such documents unless
such exhibits are specifically incorporated by reference herein). You may request a copy of any or all of these filings, at no cost,
by writing or telephoning us at: Microbot Medical Inc., 25 Recreation Park Drive, Unit 108, Hingham, MA 02043; Attention: Harel Gadot;
telephone number (908) 938-5561.
You
should rely only on information contained in, or incorporated by reference into, this prospectus and any prospectus supplement. We have
not authorized anyone to provide you with information different from that contained in this prospectus or incorporated by reference in
this prospectus. We are not making offers to sell the securities in any jurisdiction in which such an offer or solicitation is not authorized
or in which the person making such offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make such offer
or solicitation.
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth the various expenses in connection with the sale and distribution of the securities being registered, all
of which are being borne by us.
SEC registration fee | |
$ | 11,070.00 | |
Printing and engraving expenses | |
| * | |
Legal fees and expenses | |
| * | |
Accounting fees and expenses | |
| * | |
Blue sky fees and expenses | |
| * | |
Transfer Agent and Registrar fees | |
| * | |
Trust fees and expenses | |
| * | |
Miscellaneous | |
| * | |
Total | |
$ | * | |
|
* |
The
amount of securities and number of offerings are indeterminable and cannot be estimated at this time. |
Item
15. Indemnification of Directors and Officers.
Section
145 of the Delaware General Corporation Law (“DGCL”) permits, in general, a Delaware corporation, to indemnify any person
who was or is a party to any proceeding (other than an action by, or in the right of, the corporation) by reason of the fact that or
she is or was a director, or officer, of the corporation, or served another business enterprise in any capacity at the request of the
corporation, against liability incurred in connection with such proceeding, including the expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such proceeding 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 criminal actions or proceedings, additionally had no reasonable cause to believe that his or her conduct was unlawful. A Delaware
corporation’s power to indemnify applies to actions brought by or in the right of the corporation, but only to the extent of expenses
(including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of the
action or suit, provided that no indemnification shall be provided in such actions in the event of any adjudication of negligence or
misconduct in the performance of such person’s duties to the corporation, unless a court believes that in light of all the circumstances
indemnification should apply. Section 145 of the DGCL also permits, in general, a Delaware corporation to purchase and maintain insurance
on behalf of any person who is or was a director or officer of the corporation, or served another entity in any capacity at the request
of the corporation, against liability incurred by such person in such capacity, whether or not the corporation would have the power to
indemnify such person against such liability.
Section
102(b)(7) of the DGCL permits a corporation to include in its certificate of incorporation a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided
that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director’s duty of loyalty
to the corporation or its stockholders, (ii) for acts or omissions not in good faith or that involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the DGCL or (iv) for any transaction from which the director derived an improper personal
benefit.
The
Company’s restated certificate of incorporation provides that the Company’s directors shall not be liable to the Company
or its stockholders for monetary damages for breach of fiduciary duty as a director except to the extent that exculpation from liabilities
is not permitted under the DGCL as in effect at the time such liability is determined. The Company’s restated certificate of incorporation
further provides that the Company shall indemnify its directors and officers to the fullest extent permitted by the DGCL.
We
maintain a directors’ and officers’ insurance policy pursuant to which our directors and officers are insured against liability
for actions taken in their capacities as directors and officers. We believe that these indemnification provisions and insurance are necessary
to attract and retain qualified directors and officers.
Indemnification
Agreements
The
Company has entered into indemnification agreements with each of its directors and executive officers. These indemnification agreements
may require the Company, among other things, to indemnify its directors and officers for some expenses, including attorneys’ fees,
judgments, fines and settlement amounts incurred by a director or officer in any action or proceeding arising out of his or her service
as one of the Company’s directors or officers, or any of its subsidiaries or any other company or enterprise to which the person
provides services at our request.
Item
16. Exhibits.
The
exhibits to this registration statement are listed in the Exhibit Index to this registration statement, which Exhibit Index is hereby
incorporated by reference.
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 Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement; 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 Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required
by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier
of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration
statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective date.
(5)
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities, 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)
That, for purposes of determining any liability under the Securities Act:
(i)
the information omitted from the form of prospectus filed as part of the registration statement in reliance upon Rule 430A and contained
in the form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed
to be part of the registration statement as of the time it was declared effective; and
(ii) each
post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c)
The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant
to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(d)
The undersigned registrant hereby undertakes to
file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust
Indenture Act in accordance with the rules and regulations prescribed by the Commission under section 305(b)(2) of the Trust Indenture
Act.
(e)
Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant, the registrant has
been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Braintree, State of Massachusetts, on the 17th day of November, 2023.
|
MICROBOT
MEDICAL INC. |
|
|
|
|
By: |
/s/
Harel Gadot |
|
|
Harel
Gadot |
|
|
Chairman,
President and Chief Executive Officer |
SIGNATURES
AND POWER OF ATTORNEY
Each
person whose signature appears below hereby constitutes and appoints Harel Gadot and Rachel Vaknin, and each of them singly, his or her
true and lawful attorneys-in-fact and agent 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 sign any and all amendments (including post-effective amendments) to this Registration
Statement on Form S-3 and any related Rule 462(b) registration statement or amendment thereto 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 full power and authority to be done in and about the premises, as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and
on the dates indicated.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/
Harel Gadot |
|
Chairman,
President and Chief Executive Officer |
|
November
17, 2023 |
Harel
Gadot |
|
(Principal
Executive Officer) |
|
|
|
|
|
|
|
/s/
Rachel Vaknin |
|
Chief
Financial Officer |
|
November
17, 2023 |
Rachel
Vaknin |
|
(Principal
Financial and Accounting Officer) |
|
|
|
|
|
|
|
/s/
Tal Wenderow |
|
Director |
|
November
14, 2023 |
Tal
Wenderow |
|
|
|
|
|
|
|
|
|
/s/
Yoseph Bornstein |
|
Director |
|
November
14, 2023 |
Yoseph
Bornstein |
|
|
|
|
|
|
|
|
|
/s/
Prattipati Laxminarain |
|
Director |
|
November
14, 2023 |
Prattipati
Laxminarain |
|
|
|
|
|
|
|
|
|
/s/
Scott Burell |
|
Director |
|
November
14, 2023 |
Scott
Burell |
|
|
|
|
|
|
|
|
|
/s/
Martin Madden |
|
Director |
|
November
14, 2023 |
Martin
Madden |
|
|
|
|
|
|
|
|
|
/s/
Aileen Stockburger |
|
Director |
|
November
14, 2023 |
Aileen
Stockburger |
|
|
|
|
EXHIBIT
INDEX
Exhibit |
|
Description |
|
|
|
1.1* |
|
Form
of underwriting agreement |
|
|
|
3.1 |
|
Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 of the Registrant’s Annual Report on Form 10-K, filed on March 15, 2007) |
|
|
|
3.2 |
|
Certificate of Amendment to the Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 of Current Report on Form 8-K, filed on November 29, 2016) |
|
|
|
3.3 |
|
Certificate of Amendment to the Restated Certificate of Incorporation (incorporated by reference to the Company’s Current Report on Form 8-K filed on September 4, 2018). |
|
|
|
3.4 |
|
Certificate of Amendment to the Restated Certificate of Incorporation (incorporated by reference to the Company’s Current Report on Form 8-K filed on September 11, 2019). |
|
|
|
3.5 |
|
Amended and Restated By-Laws of the Company (incorporated by reference to the Company’s Current Report on Form 8-K filed on May 3, 2016). |
|
|
|
3.6 |
|
Amendment to Section 5 of the Amended and Restated By-Laws of the Company (incorporated by reference to the Company’s Current Report on Form 8-K filed on May 3, 2021). |
|
|
|
4.1* |
|
Form
of Common Stock Warrant Agreement and Warrant Certificate |
|
|
|
4.2* |
|
Form
of Preferred Stock Warrant Agreement and Warrant Certificate |
|
|
|
4.3* |
|
Form
of Debt Securities Warrant Agreement and Warrant Certificate |
|
|
|
4.4** |
|
Form of Senior Indenture |
|
|
|
4.5** |
|
Form of Subordinated Indenture |
|
|
|
4.6* |
|
Form
of Rights Agreement and Right Certificate |
|
|
|
4.7* |
|
Form
of Unit Agreement and Unit |
|
|
|
5.1** |
|
Opinion of Ruskin Moscou Faltischek, P.C. |
|
|
|
23.1** |
|
Consent of Ruskin Moscou Faltischek, P.C. (contained in Exhibit 5.1) |
|
|
|
23.2** |
|
Consent of Brightman Almagor Zohar & Co., a firm in the Deloitte Global Network |
|
|
|
24.1** |
|
Power of Attorney (included on the signature page hereto) |
|
|
|
25.1*** |
|
Statement
of Eligibility of Trustee Under Debt Indenture |
|
|
|
107** |
|
Filing Fee Table |
* |
To
be filed, if necessary, subsequent to the effectiveness of this registration statement by an amendment to this registration statement
or incorporated by reference pursuant to a Current Report on Form 8-K in connection with an offering of securities. |
** |
Filed herewith. |
*** |
To
be filed separately pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939. |
Exhibit
4.4
MICROBOT
MEDICAL INC.
Issuer
AND
[
] Trustee
INDENTURE
Dated
as of [ ]
Senior
Debt Securities
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(a) |
311(b). |
|
7.13(b) |
311(c). |
|
Inapplicable |
312(a) |
|
5.02(a) |
312(b). |
|
5.02(b) |
312(c). |
|
5.02(c) |
313(a). |
|
5.04(a) |
313(b). |
|
5.04(a) |
313(c). |
|
5.04(a) |
|
|
5.04(b) |
313(d). |
|
5.04(b) |
314(a). |
|
5.03 |
314(b). |
|
Inapplicable |
314(c). |
|
13.06 |
314(d). |
|
Inapplicable |
314(e). |
|
13.06 |
314(f). |
|
Inapplicable |
315(a). |
|
7.01(a) |
|
|
7.02 |
315(b). |
|
6.07 |
315(c). |
|
7.01 |
315(d). |
|
7.01(b) |
|
|
7.01(c) |
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). |
|
13.08 |
(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.
TABLE
OF CONTENTS (2)
|
|
|
Page |
|
|
|
|
ARTICLE
I |
DEFINITIONS |
1 |
|
|
|
|
SECTION
1.01 |
Definitions
of Terms |
1 |
|
|
|
|
ARTICLE
II |
ISSUE,
DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
4 |
|
|
|
|
SECTION
2.01 |
Designation
and Terms of Securities |
4 |
SECTION
2.02 |
Form
of Securities and Trustee’s Certificate |
5 |
SECTION
2.03 |
Denominations:
Provisions for Payment |
6 |
SECTION
2.04 |
Execution
and Authentications |
7 |
SECTION
2.05 |
Registration
of Transfer and Exchange |
8 |
SECTION
2.06 |
Temporary
Securities |
8 |
SECTION
2.07 |
Mutilated,
Destroyed, Lost or Stolen Securities |
9 |
SECTION
2.08 |
Cancellation |
9 |
SECTION
2.09 |
Benefits
of Indenture |
9 |
SECTION
2.10 |
Authenticating
Agent |
10 |
SECTION
2.11 |
Global
Securities |
10 |
|
|
|
|
ARTICLE
III |
REDEMPTION
OF SECURITIES AND SINKING FUND PROVISIONS |
11 |
|
|
|
|
SECTION
3.01 |
Redemption |
11 |
SECTION
3.02 |
Notice
of Redemption |
11 |
SECTION
3.03 |
Payment
Upon Redemption |
12 |
SECTION
3.04 |
Sinking
Fund |
12 |
SECTION
3.05 |
Satisfaction
of Sinking Fund Payments with Securities |
13 |
SECTION
3.06 |
Redemption
of Securities for Sinking Fund |
13 |
|
|
|
|
ARTICLE
IV |
COVENANTS |
13 |
|
|
|
|
SECTION
4.01 |
Payment
of Principal, Premium and Interest |
13 |
SECTION
4.02 |
Maintenance
of Office or Agency |
13 |
SECTION
4.03 |
Paying
Agents |
14 |
SECTION
4.04 |
Appointment
to Fill Vacancy in Office of Trustee |
14 |
SECTION
4.05 |
Compliance
with Consolidation Provisions |
14 |
|
|
|
|
ARTICLE
V |
SECURITYHOLDERS’
LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
15 |
|
|
|
|
SECTION
5.01 |
Company
to Furnish Trustee Names and Addresses of Securityholders |
15 |
SECTION
5.02 |
Preservation
of Information; Communications with Securityholders |
15 |
SECTION
5.03 |
Reports
by the Company |
15 |
SECTION
5.04 |
Reports
by the Trustee |
16 |
|
|
|
|
ARTICLE
VI |
REMEDIES
OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
16 |
|
|
|
|
SECTION
6.01 |
Events
of Default |
16 |
SECTION
6.02 |
Collection
of Indebtedness and Suits for Enforcement by Trustee |
18 |
SECTION
6.03 |
Application
of Moneys Collected |
19 |
SECTION
6.04 |
Limitation
on Suits |
19 |
SECTION
6.05 |
Rights
and Remedies Cumulative; Delay or Omission Not Waiver |
20 |
SECTION
6.06 |
Control
by Securityholders |
20 |
SECTION
6.07 |
Undertaking
to Pay Costs |
20 |
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ARTICLE
VII |
CONCERNING
THE TRUSTEE |
21 |
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SECTION
7.01 |
Certain
Duties and Responsibilities of Trustee |
21 |
SECTION
7.02 |
Certain
Rights of Trustee |
22 |
SECTION
7.03 |
Trustee
Not Responsible for Recitals or Issuance of Securities |
23 |
SECTION
7.04 |
May
Hold Securities |
23 |
SECTION
7.05 |
Moneys
Held in Trust |
23 |
SECTION
7.06 |
Compensation
and Reimbursement |
23 |
SECTION
7.07 |
Reliance
on Officers’ Certificate |
24 |
SECTION
7.08 |
Disqualification;
Conflicting Interests |
24 |
SECTION
7.09 |
Corporate
Trustee Required; Eligibility |
24 |
SECTION
7.10 |
Resignation
and Removal; Appointment of Successor |
24 |
SECTION
7.11 |
Acceptance
of Appointment By Successor |
25 |
SECTION
7.12 |
Merger,
Conversion, Consolidation or Succession to Business |
26 |
SECTION
7.13 |
Preferential
Collection of Claims Against the Company |
27 |
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ARTICLE
VIII CONCERNING THE SECURITYHOLDERS |
27 |
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SECTION
8.01 |
Evidence
of Action by Securityholders |
27 |
SECTION
8.02 |
Proof
of Execution by Securityholders |
27 |
SECTION
8.03 |
Who
May be Deemed Owners |
27 |
SECTION
8.04 |
Certain
Securities Owned by Company Disregarded |
28 |
SECTION
8.05 |
Actions
Binding on Future Securityholders |
28 |
SECTION
8.06 |
Purposes
for Which Meetings May Be Called |
28 |
SECTION
8.07 |
Call
Notice and Place of Meetings |
28 |
SECTION
8.08 |
Persons
Entitled To Vote at Meetings |
29 |
SECTION
8.09 |
Quorum;
Action |
29 |
SECTION
8.10 |
Determination
of Voting Rights; Conduct and Adjournment of Meetings |
29 |
SECTION
8.11 |
Counting
Votes and Recording Action of Meetings |
30 |
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ARTICLE
IX SUPPLEMENTAL INDENTURES |
30 |
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SECTION
9.01 |
Supplemental
Indentures Without the Consent of Securityholders |
30 |
SECTION
9.02 |
Supplemental
Indentures With Consent of Securityholders |
31 |
SECTION
9.03 |
Effect
of Supplemental Indentures |
32 |
SECTION
9.04 |
Securities
Affected by Supplemental Indentures |
32 |
SECTION
9.05 |
Execution
of Supplemental Indentures |
32 |
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ARTICLE
X SUCCESSOR ENTITY |
32 |
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SECTION
10.01 |
Company
May Consolidate, Etc |
32 |
SECTION
10.02 |
Successor
Entity Substituted |
33 |
SECTION
10.03 |
Evidence
of Consolidation, Etc. to Trustee |
33 |
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ARTICLE
XI SATISFACTION AND DISCHARGE |
33 |
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SECTION
11.01 |
Satisfaction
and Discharge of Indenture |
33 |
SECTION
11.02 |
Discharge
of Obligations |
34 |
SECTION
11.03 |
Deposited
Moneys to be Held in Trust |
34 |
SECTION
11.04 |
Payment
of Moneys Held by Paying Agents |
34 |
SECTION
11.05 |
Repayment
to Company |
34 |
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ARTICLE
XII IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
34 |
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SECTION
12.01 |
No
Recourse |
34 |
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ARTICLE
XIII MISCELLANEOUS PROVISIONS |
35 |
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SECTION
13.01 |
Effect
on Successors and Assigns |
35 |
SECTION
13.02 |
Actions
by Successor |
35 |
SECTION
13.03 |
Surrender
of Company Powers |
35 |
SECTION
13.04 |
Notices |
35 |
SECTION
13.05 |
Governing
Law |
35 |
SECTION
13.06 |
Treatment
of Securities as Debt |
35 |
SECTION
13.07 |
Compliance
Certificates and Opinions |
36 |
SECTION
13.08 |
Payments
on Business Days |
36 |
SECTION
13.09 |
Conflict
with Trust Indenture Act |
36 |
SECTION
13.10 |
Counterparts |
36 |
SECTION
13.11 |
Separability |
36 |
SECTION
13.12 |
Assignment |
36 |
(2) This Table of Contents does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms and provisions.
INDENTURE,
dated as of [ ], by and between Microbot Medical Inc., a Delaware corporation (the “Company”), and [ ], as trustee (the “Trustee”):
WHEREAS,
for its lawful corporate purposes, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance
of debt securities (hereinafter referred to as the “Securities”), in an unlimited aggregate principal amount to be issued
from time to time in one or more series as in this Indenture provided, as registered Securities without coupons, to be authenticated
by the certificate of the Trustee;
WHEREAS,
to provide the terms and conditions upon which the Securities are to be authenticated, issued and delivered, the Company has duly authorized
the execution of this Indenture; and
WHEREAS,
all things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW,
THEREFORE, in consideration of the premises and the purchase of the Securities by the holders thereof, it is mutually covenanted and
agreed as follows for the equal and ratable benefit of the holders of Securities:
ARTICLE
I
DEFINITIONS
SECTION
1.01 Definitions of Terms.
The
terms defined in this Section (except as in this Indenture 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 otherwise
expressly provided or unless the context otherwise requires), shall have the meanings assigned to such terms in said Trust Indenture
Act and in said Securities Act as in force at the date of the execution of this instrument.
“Authenticating
Agent” means an authenticating agent with respect to all or any of the series of Securities appointed with respect to all or any
series of the Securities by the Trustee pursuant to Section 2.10.
“Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
“Board
of Directors” means the Board of Directors of the Company or any duly authorized committee of such Board.
“Board
Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the date of such certification.
“Business
Day” means, with respect to any series of Securities, any day other than a day on which Federal or State banking institutions in
the Borough of Manhattan, the City and State of New York, are authorized or obligated by law, executive order or regulation to close.
“Certificate”
means a certificate signed by the principal executive officer, the principal financial officer or the principal accounting officer of
the Company. The Certificate need not comply with the provisions of Section 13.07.
“Commission”
means the Securities and Exchange Commission.
“Company”
means the corporation named as the “Company” in the first paragraph of this instrument until a successor corporation shall
have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor
corporation.
“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 [ ], except that whenever a provision herein refers to an office or agency
of the Trustee in the Borough of Manhattan, the City and State of New York, such office is located, at the date hereof, at [ ].
“Custodian”
means any receiver, trustee, assignee, liquidator, or similar official under any Bankruptcy Law.
“Default”
means an event which is, or after notice or lapse of time, or both, would constitute an Event of Default.
“Depositary”
means, with respect to Securities of any series, for which the Company shall determine that such Securities will be issued as a Global
Security, The Depository Trust Company, New York, New York, another clearing agency, or any successor registered as a clearing agency
under the 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 Section 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 Securities Exchange Act of 1934, as amended.
“Global
Security” means, with respect to any series of Securities, a Security executed by the Company and delivered by the Trustee to the
Depositary or pursuant to the Depositary’s instruction, all in accordance with this Indenture, which shall be registered in the
name of the Depositary or its nominee.
“Governmental
Obligations” means securities that are (i) direct obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) 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 non-callable at the option of the issuer thereof, and shall also include a depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with respect to any such Governmental
Obligation or a specific payment of principal of or interest on any such Governmental Obligation held by such custodian for the account
of the holder of such depositary receipt; provided, however, that (except as required by law) such custodian is not authorized to make
any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of
the Governmental Obligation or the specific payment of principal of or interest on the Governmental Obligation evidenced by such depositary
receipt.
“herein,”
“hereof” and “hereunder,” and other words of similar import, refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
“Indenture”
means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental
hereto entered into in accordance with the terms hereof.
“Interest
Payment Date,” when used with respect to any installment of interest on a Security of a particular series, means the date specified
in such Security or in a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date on which
an installment of interest with respect to Securities of that series is due and payable.
“Officers’
Certificate” means a certificate signed by the President or a Vice President and by the Chief Financial Officer, Vice President
of Finance, the Treasurer or an Assistant Treasurer or the Controller or an Assistant Controller or the Secretary or an Assistant Secretary
of the Company that is delivered to the Trustee in accordance with the terms hereof. 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 a written opinion of counsel, who may be counsel to the Company (and may include directors or employees of the
Company) and which opinion is acceptable to the Trustee which acceptance shall not be unreasonably withheld.
“Outstanding”,
when used with reference to Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time, all
Securities of that series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore
canceled by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that have previously
been canceled; (b) Securities or portions thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary
amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside
and segregated in trust by the Company (if the Company shall act as its own paying agent); provided, however, that if such Securities
or portions of such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as in
Article III provided, or provision satisfactory to the Trustee shall have been made for giving such notice; and (c) Securities in lieu
of or in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.07.
“Person”
means any individual, corporation, limited liability company, partnership, joint-venture, association, joint-stock company, trust, estate,
unincorporated organization or government or any agency or political subdivision 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 mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
“Responsible
Officer,” when used with respect to the Trustee, means any officer of the Trustee, including any vice president, assistant vice
president, secretary, assistant secretary, the treasurer, any assistant treasurer, the managing director 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 such officer’s knowledge of
and familiarity with the particular subject.
“Securities”
means the debt Securities authenticated and delivered under this Indenture.
“Security
Register” has the meaning specified in Section 2.05.
“Security
Registrar” has the meaning specified in Section 2.05.
“Securityholder,”
“holder of Securities,” “registered holder,” or other similar term, means the Person or Persons in whose name
or names a particular Security shall be registered in the Security Register.
“Subsidiary”
means, with respect to any Person, (i) any corporation at least a majority of whose outstanding Voting Stock shall at the time be owned,
directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, (ii)
any general partnership, joint venture or similar entity, at least a majority of whose outstanding partnership or similar interests shall
at the time be owned by such Person, or by one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries and
(iii) any limited partnership of which such Person or any of its Subsidiaries is a general partner.
“Trustee”
means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean such successor Trustee.
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, subject to the provisions of Sections 9.01, 9.02, and 10.01,
as in effect at the date of execution of this instrument; provided, however, that in the event the Trust Indenture Act is amended after
such date, Trust Indenture Act means, to the extent required by such amendment, the Trust Indenture Act of 1939, as so amended, or any
successor statute.
“Voting
Stock,” as applied to any Person, means shares, interests, participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election of a majority of the directors (or the equivalent) of such Person,
other than shares, interests, participations or other equivalents having such power only by reason of the occurrence of a contingency.
ARTICLE
II
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 of the Company or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities of a given series, there shall be established in or pursuant to a Board Resolution of the Company, and set forth in an Officers’ Certificate of the Company, or established in one or more indentures supplemental hereto: |
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(1) |
the title of the Security of the series (which shall distinguish the Securities of the series from all other Securities); |
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(2) |
the aggregate principal amount of the Securities of such series initially to be issued and 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); |
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(3) |
the currency or units based on or relating to currencies in which debt securities of such series are denominated and the currency or units in which principal or interest or both will or may be payable; |
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(4) |
the date or dates on which the principal of the Securities of the series is payable and the place(s) of payment; |
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(5) |
the rate or rates at which the Securities of the series shall bear interest or the manner of calculation of such rate or rates, if any; |
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(6) |
the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest will be payable or the manner of determination of such Interest Payment Dates, the place(s) of payment, and the record date for the determination of holders to whom interest is payable on any such Interest Payment Dates or the method for determining such dates; |
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(7) |
the right, if any, to extend the interest payment periods or to defer the payment of interest and the duration of such extension; |
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(8) |
the period or periods within which, the price or prices at which and the terms and conditions upon which, Securities of the series may be redeemed, in whole or in part, at the option of the Company; |
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(9) |
the
obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund or analogous provisions
(including payments made in cash in satisfaction of future sinking fund obligations) or at the option of a holder thereof and the
period or periods within which, the price or prices at which, and the terms and conditions upon which, Securities of the series shall
be redeemed or purchased, in whole or in part, pursuant to such obligation; |
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(10) |
whether
or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
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(11) |
the
form of the Securities of the series including the form of the Certificate of Authentication for such series; |
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(12) |
if
other than denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, the denominations in which the Securities
of the series shall be issuable; |
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(13) |
any
and all other terms with respect to such series (which terms shall not be inconsistent with the terms of this Indenture, as amended
by any supplemental indenture) including any terms which may be required by or advisable under United States laws or regulations
or advisable in connection with the marketing of Securities of that series; |
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(14) |
whether
the Securities are issuable as a Global Security and, in such case, the identity of the Depositary for such series; |
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(15) |
whether
the Securities will be convertible into shares of common stock or other securities of the Company and, if so, the terms and conditions
upon which such Securities will be so convertible, including the conversion price and the conversion period; |
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(16) |
if
other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 6.01; and |
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(17) |
any
additional or different Events of Default or restrictive covenants provided for with respect to the Securities of the series. |
All
Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or
pursuant to any such Board Resolution or in any indentures supplemental hereto.
If
any of the terms of the series are established by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate
record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Officers’ Certificate of the Company setting forth the terms of the series.
Securities
of any particular series may be issued at various times, with different dates on which the principal or any installment of principal
is payable, with different rates of interest, if any, or different methods by which rates of interest may be determined, with different
dates on which such interest may be payable and with different redemption dates.
SECTION
2.02 Form of Securities and Trustee’s Certificate.
The
Securities of any series and the Trustee’s certificate of authentication to be borne by such Securities shall be substantially
of the tenor and purport as set forth in one or more indentures supplemental hereto or as provided in a Board Resolution of the Company
and as set forth in an Officers’ Certificate of the Company and 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 stock 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)(12). The Securities of a particular series shall bear interest payable on the dates and
at the rate specified with respect to that series. The principal of and the interest on the Securities of any series, as well as any
premium thereon in case of redemption thereof prior to maturity, shall be payable in the coin or currency of the United States of America
that at the time is legal tender for public and private debt, at the office or agency of the Company maintained for that purpose in the
Borough of Manhattan, the City and State of New York. Each Security shall be dated the date of its authentication. Interest on the Securities
shall be computed on the basis of a 360-day year composed of twelve 30-day months.
The
interest installment on any Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities
of that series shall be paid to the Person in whose name said Security (or one or more Predecessor Securities) is registered at the close
of business on the regular record date for such interest installment. In the event that any Security of a particular series or portion
thereof is called for redemption and the redemption date is subsequent to a regular record date with respect to any Interest Payment
Date and prior to such Interest Payment Date, interest on such Security will be paid upon presentation and surrender of such Security
as provided in Section 3.03.
Any
interest on any Security that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date for Securities
of the same series (herein called “Defaulted Interest”) shall forthwith cease to be payable to the registered holder on the
relevant regular record date by virtue of having been such holder; and such Defaulted Interest shall be paid by the Company, at its election,
as provided in clause (1) or clause (2) below:
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(1) |
The
Company may make payment of any Defaulted Interest on Securities to the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered at the close of business on a special record date for the payment of such Defaulted Interest,
which shall be fixed in the following manner: the Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Security and the date of the proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted Interest which shall not be more than 15 nor less than 10 days
prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such special record date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the special record date therefor to be mailed, first class
postage prepaid, to each Securityholder at his or her address as it appears in the Security Register, not less than 10 days prior
to such special record date. Notice of the proposed payment of such Defaulted Interest and the special record date therefor having
been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered on such special record date. |
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(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 of the Company 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 with respect to 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 last 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 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 its President, or one of its Vice Presidents, or its Treasurer, or one of its
Assistant Treasurers, or its Secretary, or one of its Assistant Secretaries, under its corporate seal attested by its Secretary or one
of its Assistant Secretaries. 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 a President or Vice President thereof, or of any Person who shall have been a Treasurer or Assistant
Treasurer thereof, or of any Person who shall have been a Secretary or Assistant Secretary thereof, notwithstanding the fact that at
the time the Securities shall be authenticated and delivered or disposed of such Person shall have ceased to be the President or a Vice
President, the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary, of the Company. The seal of the Company
may be in the form of a facsimile of such seal and may be impressed, affixed, imprinted or otherwise reproduced on the Securities. The
Securities may contain such notations, legends or endorsements required by law, stock exchange rule or usage. Each Security shall be
dated the date of its authentication.
A
Security shall not be valid or obligatory for any purpose and shall not be entitled to any benefit under this Indenture, in each case,
until authenticated with a certificate of authentication manually signed by an authorized signatory of the Trustee, or by an Authenticating
Agent. Such certificate shall be conclusive evidence, and the only evidence, that the Security so authenticated has been duly authenticated
and delivered hereunder and that the Security 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 its
President or any Vice President and its Secretary or any Assistant Secretary, and the Trustee in accordance with such written order shall
authenticate and deliver such Securities.
In
authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall be fully protected in relying upon, an Opinion of Counsel stating
that the form and terms thereof have been established in conformity with the provisions of this Indenture.
The
Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect
the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner that is not reasonably
acceptable to the Trustee.
SECTION
2.05 Registration of Transfer and Exchange.
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(a) |
Securities
of any series may be exchanged upon presentation thereof at the office or agency of the Company designated for such purpose in the
Borough of Manhattan, the City and State of New York, for other Securities of such series of authorized denominations, and for a
like aggregate principal amount, upon payment of a sum sufficient to cover any tax or other governmental charge in relation thereto,
all as provided in this Section. In respect of any Securities so surrendered for exchange, the Company shall execute, the Trustee
shall authenticate and such office or agency shall deliver in exchange therefor the Security or Securities of the same series that
the Securityholder making the exchange shall be entitled to receive, bearing numbers not contemporaneously outstanding. |
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(b) |
The
Company shall keep, or cause to be kept, at its office or agency designated for such purpose in the Borough of Manhattan, the City
and State of New York, or such other location designated by the Company a register or registers (herein referred to as the “Security
Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall register the Securities
and the transfers of Securities as in this Article provided and which at all reasonable times shall be open for inspection by the
Trustee. The registrar for the purpose of registering Securities and transfer of Securities as herein provided shall be appointed
as authorized by Board Resolution (the “Security Registrar”). |
Upon
surrender for transfer of any Security at the office or agency of the Company designated for such purpose, the Company shall execute,
the Trustee shall authenticate and such office or agency shall deliver in the name of the transferee or transferees a new Security or
Securities of the same series as the Security presented for a like aggregate principal amount.
All
Securities presented or surrendered for exchange or registration of transfer, as provided in this Section, shall be accompanied (if so
required by the Company or the Security Registrar) by a written instrument or instruments of transfer, in form satisfactory to the Company
or the Security Registrar, duly executed by the registered holder or by such holder’s duly authorized attorney in writing.
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(c) |
No
service charge shall be made for any exchange or registration of transfer of Securities, or issue of new Securities in case of partial
redemption of any series, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge in
relation thereto, other than exchanges pursuant to Section 2.06, Section 3.03(b) and Section 9.04 not involving any transfer. |
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(d) |
The
Company shall not be required (i) to issue, exchange or register the transfer of any Securities during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of redemption of less than all the Outstanding Securities of
the same series and ending at the close of business on the day of such mailing, nor (ii) to register the transfer of or exchange
any Securities of any series or portions thereof called for redemption. The provisions of this Section 2.05 are, with respect to
any Global Security, subject to Section 2.11 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 holders), at the office or agency of the Company designated for the purpose in the Borough of Manhattan, the City and State of New
York, and the Trustee shall authenticate and such office or agency shall deliver in exchange for such temporary Securities an equal aggregate
principal amount of definitive Securities of such series, unless the Company advises the Trustee to the effect that definitive Securities
need not be executed and furnished until further notice from the Company. Until so exchanged, the temporary Securities of such series
shall be entitled to the same benefits under this Indenture as definitive Securities of such series authenticated and delivered hereunder.
SECTION
2.07 Mutilated, Destroyed, Lost or Stolen Securities.
In
case any temporary or definitive Security shall become mutilated or be destroyed, lost or stolen, the Company (subject to the next succeeding
sentence) shall execute, and upon the Company’s request the Trustee (subject as aforesaid) shall authenticate and deliver, a new
Security of the same series, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security,
or in lieu of and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security
shall furnish to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, and,
in every case of destruction, loss or theft, the applicant shall also furnish to the Company and the Trustee evidence to their satisfaction
of the destruction, loss or theft of the applicant’s Security and of the ownership thereof. The Trustee may authenticate any such
substituted Security and deliver the same upon the written request or authorization of any officer of the Company. Upon the issuance
of any substituted Security, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith. In case
any Security that has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead
of issuing a substitute Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated
Security) if the applicant for such payment shall furnish to the Company and the Trustee such security or indemnity as they may require
to save them harmless, and, in case of destruction, loss or theft, evidence to the satisfaction of the Company and the Trustee of the
destruction, loss or theft of such Security and of the ownership thereof.
Every
replacement Security issued pursuant to the provisions of this Section shall constitute an additional contractual obligation of the Company
whether or not the mutilated, destroyed, lost or stolen Security shall be found at any time, or be enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of the same series duly
issued hereunder. All Securities shall be held and owned upon the express condition that the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities, and shall preclude (to the extent lawful) any
and all other rights or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without their surrender.
SECTION
2.08 Cancellation.
All
Securities surrendered for the purpose of payment, redemption, exchange or registration of transfer shall, if surrendered to the Company
or any paying agent, be delivered to the Trustee for cancellation, or, if surrendered to the Trustee, shall be 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 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
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(a) |
If
the Company shall establish pursuant to Section 2.01 that some or all of 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, the
Outstanding Securities of such series which are to be issued as a Global Security, (ii) shall be registered in the name of the Depositary
or its nominee, (iii) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction and (iv)
shall bear a legend substantially to the following effect: “Except as otherwise provided in Section 2.11 of the Indenture,
this Security may be transferred, in whole but not in part, only to another nominee of the Depositary or to a successor Depositary
or to a nominee of such successor Depositary.” |
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(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. |
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(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, this Section 2.11 shall no
longer be applicable to the Securities of such series and the Company will execute, and subject to Section 2.05, 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 2.05, the Trustee, upon receipt of an Officers’ Certificate evidencing such
determination by the Company, will authenticate and deliver the Securities of such series in definitive registered form without coupons,
in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security of such series
in exchange for such Global Security. Upon the exchange of the Global Security for such Securities in definitive registered form
without coupons, in authorized denominations, the Global Security shall be canceled by the Trustee. Such Securities in definitive
registered form issued in exchange for the Global Security pursuant to this Section 2.11(c) shall be registered in such names and
in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Securities to the Depositary for delivery to the Persons in whose names
such Securities are so registered. |
ARTICLE
III
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.
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(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 the right reserved so to do, the Company shall, or shall cause the Trustee to, give notice of such redemption
to holders of the Securities of such series to be redeemed by mailing, first class postage prepaid, a notice of such redemption not
less than 30 days and not more than 90 days before the date fixed for redemption of that series to such holders at their last addresses
as they shall appear upon the Security Register unless a shorter period is specified in the Securities to be redeemed. Any notice
that is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the registered
holder receives the notice. In any case, failure duly to give such notice to the holder of any Security of any series designated
for redemption in whole or in part, or any defect in the notice, shall not affect the validity of the proceedings for the redemption
of any other Securities of such series or any other series. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish
the Trustee with an Officers’ Certificate evidencing compliance with any such restriction. |
Each
such notice of redemption shall specify the date fixed for redemption and the redemption price at which Securities of that series are
to be redeemed, and shall state that payment of the redemption price of such Securities to be redeemed will be made at the office or
agency of the Company in the Borough of Manhattan, the City and State of New York, upon presentation and surrender of such Securities,
that interest accrued to the date fixed for redemption will be paid as specified in said notice, that from and after said date interest
will cease to accrue and that the redemption is for a sinking fund, if such is the case. If less than all the Securities of a series
are to be redeemed, the notice to the holders of Securities of that series to be redeemed in whole or 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.
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(b) |
If
less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 30 days’ notice in
advance of the date fixed for redemption as to the aggregate principal amount of Securities of the series to be redeemed, and thereupon
the Trustee shall select, by lot or in such other manner as it shall deem appropriate and fair in its discretion and that may provide
for the selection of a portion or portions (equal to one thousand U.S. dollars ($1,000) or any integral multiple thereof) of the
principal amount of such Securities of a denomination larger than $1,000, the Securities to be redeemed and shall thereafter promptly
notify the Company in writing of the numbers of the Securities to be redeemed, in whole or in part. The Company may, if and whenever
it shall so elect, by delivery of instructions signed on its behalf by its President or any Vice President, 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.
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(a) |
If
the giving of notice of redemption shall have been completed as above provided, the Securities or portions of Securities of the series
to be redeemed specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for redemption and interest on such Securities or portions of
Securities shall cease to accrue on and after the date fixed for redemption, unless the Company shall default in the payment of such
redemption price and accrued interest with respect to any such Security or portion thereof. On presentation and surrender of such
Securities on or after the date fixed for redemption at the place of payment specified in the notice, said Securities shall be paid
and redeemed at the applicable redemption price for such series, together with interest accrued thereon to the date fixed for redemption
(but if the date fixed for redemption is an interest payment date, the interest installment payable on such date shall be payable
to the registered holder at the close of business on the applicable record date pursuant to Section 2.03). |
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(b) |
Upon
presentation of any Security of such series that is to be redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Security is presented shall deliver to the holder thereof, at the expense of the
Company, a new Security of the same series of authorized denominations in principal amount equal to the unredeemed portion of the
Security so presented. |
SECTION
3.04 Sinking Fund.
The
provisions of Sections 3.04, 3.05 and 3.06 shall be applicable to any sinking fund for the retirement of Securities of a series, except
as otherwise specified as contemplated by Section 2.01 for Securities of such series.
The
minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory
sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of any series is
herein referred to as an “optional sinking fund payment.” If provided for by the terms of Securities of any series, the cash
amount of any sinking fund payment may be subject to reduction as provided in Section 3.05. Each sinking fund payment shall be applied
to the redemption of Securities of any series as provided for by the terms of Securities of such series.
SECTION
3.05 Satisfaction of Sinking Fund Payments with Securities.
The
Company (i) may deliver Outstanding Securities of a series (other than any Securities previously called for redemption) 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, the Company will deliver to the Trustee an Officers’
Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of the series, the portion
thereof, if any, that is to be satisfied by delivering and crediting Securities of that series pursuant to Section 3.05 and the basis
for such credit and will, together with such Officers’ Certificate, deliver to the Trustee any Securities to be so delivered. Not
less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 3.02 and cause notice of the redemption thereof to be given in the name of and at
the expense of the Company in the manner provided in Section 3.02. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Section 3.03.
ARTICLE
IV
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.
SECTION
4.02 Maintenance of Office or Agency.
So
long as any series of the Securities remain Outstanding, the Company agrees to maintain an office or agency in the Borough of Manhattan,
the City and State of New York, with respect to each such series and at such other location or locations as may be designated as provided
in this Section 4.02, where (i) Securities of that series may be presented or surrendered 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 its President or a Vice President 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.
SECTION
4.03 Paying Agents.
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(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: |
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(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; |
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(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; |
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(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 |
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(4) |
that
it will perform all other duties of paying agent as set forth in this Indenture. |
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(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 with monies held by all other paying agents 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 (an 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. |
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(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 any paying agent to the Trustee, 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.
SECTION
4.05 Compliance with Consolidation Provisions.
The
Company will not, while any of the Securities remain Outstanding, consolidate with or merge into any other Person, in either case where
the Company is not the survivor of such transaction, or sell or convey all or substantially all of its property to any other company
unless the provisions of Article X hereof are complied with.
ARTICLE
V
SECURITYHOLDERS’
LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION
5.01 Company to Furnish Trustee Names and Addresses of Securityholders.
If
the Company is not the Security Register, the Company will furnish or use reasonable efforts to cause to be furnished to the Trustee
(a) on 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.
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(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) and shall otherwise
comply with Section 312(a) of the Trust Indenture Act. |
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(b) |
The
Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished. |
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(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. |
SECTION
5.03 Reports by the Company.
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(a) |
The
Company covenants and agrees to file with the Trustee, within 15 days after the Company is required to file 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 may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or
reports pursuant to either of such sections, then to file with the Trustee and the Commission, in accordance with the rules and regulations
prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports that may
be required pursuant to Section 13 of the Exchange Act, in respect of a security listed and registered on a national securities exchange
as may be prescribed from time to time in such rules and regulations; provided, however, the Company shall not be required to deliver
to the Trustee any materials for which the Company has sought and received confidential treatment by the Commission. The Company
also shall comply with the other provisions of Section 314(a) of the Trust Indenture Act. |
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(b) |
The
Company covenants and agrees to file with the Trustee and the Commission, in accordance with the rules and regulations prescribed
from to time by the Commission, such additional information, documents and reports with respect to compliance by the Company with
the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and regulations. |
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(c) |
The
Company covenants and agrees to transmit by mail, first class postage prepaid, or reputable over-night delivery service that provides
for evidence of receipt, to the Securityholders, as their names and addresses appear upon the Security Register, within 30 days after
the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company
pursuant to subsections (a) and (b) of this Section as may be required by rules and regulations prescribed from time to time by the
Commission. |
SECTION
5.04 Reports by the Trustee.
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(a) |
The
Trustee shall transmit to holders as provided in Section 313 of the Trust Indenture Act such reports concerning the Trustee and its
actions under this Indenture as may be required by Section 313 of the Trust Indenture Act at the times and in the manner provided
by the Trust Indenture Act. |
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(b) |
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 stock exchange upon which any Securities are listed (if so listed) and, if required by Section 313 of the Trust Indenture Act,
also with the Commission. The Company agrees to notify the Trustee when any Securities become listed on any stock exchange. |
ARTICLE
VI
REMEDIES
OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION
6.01 Events of Default.
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(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: |
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(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 continuance of such default 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; |
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(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; |
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(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 not less than a majority in principal amount of the Securities
of that series at the time Outstanding; |
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(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 |
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(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 consecutive days. |
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(b) |
In
each and every such case, 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 a majority 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 (or,
if any Securities of that series are discount securities, that portion of the principal amount as may be specified in the terms of
that series pursuant to Section 2.01(a)(16)) of (and premium, if any, on) and accrued and unpaid interest, if any, 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. |
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(c) |
At
any time after the principal of the Securities of that series shall have been so declared due and payable, and before a 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 (or, by action at a meeting of holders
of the Securities of such series in accordance with Section 8.09, the holders of a majority in aggregate principal amount of the
Securities of such series then Outstanding represented at such meeting), 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 and (ii) any and all Events of Default under
this Indenture with respect to such series, other than the nonpayment of principal of (and premium, if any, on) and accrued and unpaid
interest, if any, on Securities of that series that shall have become due solely because of such acceleration, shall have been remedied,
cured 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. |
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(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.
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(a) |
The
Company covenants that (1) in case it shall default in the payment of any installment of interest on any of the Securities of a series,
or 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 Business Days, or (2) 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. |
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(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 out of the property of the Company or other obligor upon the Securities of that series,
wherever situated. |
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(c) |
In
case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial
proceedings affected 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 this 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. |
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(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 this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
Nothing
contained herein shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting the Securities of that series or the rights of any holder
thereof or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
SECTION
6.03 Application of Moneys Collected.
Any
moneys collected by the Trustee pursuant to this Article with respect to a particular series of Securities shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal (or premium,
if any) or interest, upon presentation of the Securities of that series, and notation thereon the payment, if only partially paid, and
upon surrender thereof if fully paid:
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FIRST: |
To
the payment of costs and expenses of collection and of all amounts payable to the Trustee under Section 7.06; and |
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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. |
SECTION
6.04 Limitation on Suits.
No
holder of any Security of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any
suit, action or proceeding in equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless (i) such holder previously shall have given to the Trustee written notice of an Event
of Default and of the continuance thereof with respect to the Securities of such series specifying such Event of Default, as hereinbefore
provided; (ii) the holders of not less than a majority in aggregate principal amount of the Securities of such series then Outstanding
shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as trustee hereunder; (iii)
such holder or holders shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby; and (iv) the Trustee for 60 days after its receipt of such notice, request and offer of
indemnity, shall have failed to institute any such action, suit or proceeding and (v) during such 60 day period, the holders of a majority
in principal amount of the Securities of that series (or such amount as shall have acted at a meeting of the holders of Securities of
such series pursuant to the provisions of this Indenture) do not give the Trustee a direction inconsistent with the request; provided,
however, that no one or more of such holders may use this Indenture to prejudice the rights of another holder or to obtain preference
or priority over another holder.
Notwithstanding
anything contained herein to the contrary, 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.
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(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. |
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(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 on 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 8.01, 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 be unduly prejudicial to the rights of holders of Securities
of any other series at the time Outstanding determined in accordance with Section 8.01. 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 would involve the Trustee in personal liability. The holders either
(a) through the written consent of not less than a majority in aggregate principal amount of the Securities of any series at the time
Outstanding or (b) by action at a meeting of holders of the Securities of such series in accordance with Section 8.09, by the holders
of a majority in aggregate principal amount of the Securities of such series then Outstanding represented at such meeting, 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)) and except in respect
a provision hereof which, under Section 9.02, cannot be modified or amended without the consent of the holders of each Outstanding Security
affected; provided however that this Section shall not limit the right of holders of Securities of a series to rescind and annul any
acceleration as set forth in Section 6.01. 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. The provisions which otherwise would be automatically deemed to be contained in this Indenture pursuant to Section (316)(a)(1)
of the Trust Indenture Act are hereby expressly excluded from this Indenture, except to the extent such provisions are expressly included
herein.
SECTION
6.07 Undertaking to Pay Costs.
All
parties to this Indenture agree, and each holder of any Securities by such holder’s acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any
Securityholder, or group of Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities of any
series, or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of (or premium, if any) or
interest on any Security of such series, on or after the respective due dates expressed in such Security or established pursuant to this
Indenture.
ARTICLE
VII
CONCERNING
THE TRUSTEE
SECTION
7.01 Certain Duties and Responsibilities of Trustee.
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(a) |
The Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing of all Events of Default with respect to the Securities of that series that may have occurred, shall undertake to perform with respect to the Securities of such series such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants shall be read into this Indenture against the Trustee. In case an Event of Default with respect to the Securities of a series has occurred (that has not been cured or waived), the Trustee shall exercise with respect to Securities of that series such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. |
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(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: |
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(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: |
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(i) |
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 |
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(ii) |
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 requirement of this Indenture; |
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(2) |
the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee, unless it shall be proved that the Trustee, was negligent in ascertaining the pertinent facts; |
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(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; and |
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(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. |
SECTION
7.02 Certain Rights of Trustee.
Except
as otherwise provided in Section 7.01:
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(a) |
The
Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, security or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties; |
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(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 the President or any Vice President and by the Secretary or an Assistant Secretary or the Treasurer
or an Assistant Treasurer thereof (unless other evidence in respect thereof is specifically prescribed herein); |
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(c) |
The
Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted hereunder in good faith and in reliance thereon; |
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(d) |
The
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Securityholders, pursuant to the provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that may be incurred therein
or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default
with respect to a series of the Securities (that has not been cured or waived) to exercise with respect to Securities of that series
such of the rights and powers vested in it by this Indenture, and to use the same degree of care and skill in their exercise, as
a prudent man would exercise or use under the circumstances in the conduct of his own affairs; |
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(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; |
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(f) |
The
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, security, or other papers or documents, unless requested
in writing so to do by the holders of not less than a majority in principal amount of the Outstanding Securities of the particular
series affected thereby (determined as provided in Section 8.04); provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion
of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee
may require reasonable indemnity against such costs, expenses or liabilities as a condition to so proceeding. The reasonable expense
of every such examination shall be paid by the Company or, if paid by the Trustee, shall be repaid by the Company upon demand; and |
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(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. |
SECTION
7.03 Trustee Not Responsible for Recitals or Issuance of Securities.
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(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. |
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(b) |
The
Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. |
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(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.
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(a) |
The
Company covenants and agrees to pay to the Trustee, and the Trustee shall be entitled to, such reasonable compensation (which shall
not be limited by any provision of law in regard to the compensation of a trustee of an express trust), as the Company, and the Trustee
may from time to time agree in writing, for all services rendered by it in the execution of the trusts hereby created and in the
exercise and performance of any of the powers and duties hereunder of the Trustee, and, except as otherwise expressly provided herein,
the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses
and disbursements of its counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advance
as may arise from its negligence or bad faith. The Company also covenants to indemnify the Trustee (and its officers, agents, directors
and employees) for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on the
part of the Trustee and arising out of or in connection with the acceptance or administration of this trust, including the costs
and expenses of defending itself against any claim of liability in the premises. |
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(b) |
The
obligations of the Company under this Section to compensate and indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder. Such additional indebtedness shall be secured by a
lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust
for the benefit of the holders of particular Securities. |
SECTION
7.07 Reliance on Officers’ Certificate.
Except
as otherwise provided in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary
or desirable that a matter be proved or established prior to taking or suffering or omitting to take any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part
of the Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee and such
certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted to be taken by it under the provisions of this Indenture upon the faith thereof.
SECTION
7.08 Disqualification; Conflicting Interests.
If
the Trustee has or shall acquire any “conflicting interest” within the meaning of Section 310(b) of the Trust Indenture Act,
the Trustee and the Company shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
SECTION
7.09 Corporate Trustee Required; Eligibility.
There
shall at all times be a Trustee with respect to the Securities issued hereunder which shall at all times be a corporation organized and
doing business under the laws of the United States of America or any State or Territory thereof or of the District of Columbia, or a
corporation or other Person permitted to act as trustee by the Commission, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least 50 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 publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. 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.
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(a) |
The
Trustee or any successor hereafter appointed, may at any time resign with respect to the Securities of one or more series by giving
written notice thereof to the Company and by transmitting notice of resignation by mail, first class postage prepaid, to the Securityholders
of such series, as their names and addresses appear upon the Security Register. Upon receiving such notice of resignation, the Company
shall promptly appoint a successor trustee with respect to Securities of such series by written instrument, in duplicate, executed
by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within 30 days after the mailing
of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor
trustee with respect to Securities of such series, or any Securityholder of that series who has been a bona fide holder of a Security
or Securities for at least six months may on behalf of himself and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, appoint
a successor trustee. |
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(b) |
In
case at any time any one of the following shall occur: |
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(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 |
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(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 |
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(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, unless the Trustee’s duty to resign is stayed as provided herein, 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. |
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(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. |
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(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. |
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(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.
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(a) |
In
case of the appointment hereunder of a successor trustee with respect to all Securities, every such successor trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and such successor trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of
the Company or the successor trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor trustee all the rights, powers, and trusts of the retiring Trustee and shall duly assign, transfer
and deliver to such successor trustee all property and money held by such retiring Trustee hereunder. |
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(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 (1) shall contain such provisions
as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor trustee all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor
trustee relates, (2) shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same
trust, 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. |
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(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. |
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(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. |
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(e) |
Upon
acceptance of appointment by a successor trustee as provided in this Section, the Company shall transmit notice of the succession
of such trustee hereunder by mail, first class postage prepaid, to the Securityholders, as their names and addresses appear upon
the Security Register. 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 the corporate trust business
of the Trustee, 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.
ARTICLE
VIII
CONCERNING
THE SECURITYHOLDERS
SECTION
8.01 Evidence of Action by Securityholders.
Whenever
in this Indenture it is provided that the holders of a majority or specified percentage in aggregate principal amount of the Securities
of a particular series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver
or the taking of any other action), the fact that at the time of taking any such action the holders of such majority or specified percentage
of that series have joined therein may be evidenced by any instrument or any number of instruments of similar tenor executed by such
holders of Securities of that series in Person or by agent or proxy appointed in writing.
If
the Company shall solicit from the Securityholders of any series any request, demand, authorization, direction, notice, consent, waiver
or other action, the Company may, at its option, as evidenced by an Officers’ Certificate, fix in advance a record date for such
series for the determination of Securityholders entitled to give such request, demand, authorization, direction, notice, consent, waiver
or other action, but the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other action may be given before or after the record date, but only the Securityholders of record
at the close of business on the record date shall be deemed to be Securityholders for the purposes of determining whether Securityholders
of the requisite proportion of Outstanding Securities of that series have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for that purpose the Outstanding Securities of that series shall
be computed as of the record date; provided, however, that no such authorization, agreement or consent by such Securityholders on the
record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six
months after the record date.
SECTION
8.02 Proof of Execution by Securityholders.
Subject
to the provisions of Section 7.01, proof of the execution of any instrument by a Securityholder (such proof will not require notarization)
or his agent or proxy and proof of the holding by any Person of any of the Securities shall be sufficient if made in the following manner:
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(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. |
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(b) |
The
ownership of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security Registrar
thereof. |
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(c) |
The
Trustee may require such additional proof of any matter referred to in this Section as it shall deem necessary. |
SECTION
8.03 Who May be Deemed Owners.
Prior
to the due presentment for registration of transfer of any Security, the Company, the Trustee, any paying agent and any Security Registrar
may deem and treat the Person in whose name such Security shall be registered upon the books of the Company as the absolute owner of
such Security (whether or not such Security shall be overdue and notwithstanding any notice of ownership or writing thereon made by anyone
other than the Security Registrar) for the purpose of receiving payment of or on account of the principal of, 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 of 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.
SECTION
8.06 Purposes for Which Meetings May Be Called.
A
meeting of holders of any series of Securities may be called at any time and from time to time pursuant to this Article to make, give
or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made,
given or taken by holders of such series of Securities.
Notwithstanding
anything contained in this Article VIII, the Trustee may, during the pendency of a Default or an Event of Default, call a meeting of
holders of any series of Securities in accordance with its standard practices.
SECTION
8.07 Call Notice and Place of Meetings.
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(a) |
The
Trustee may at any time call a meeting of holders of any series of Securities for any purpose specified in Section 8.06 hereof, to
be held at such time and at such place in The City of New York or Boston, Massachusetts. Notice of every meeting of holders of any
series of Securities, setting forth the time and the place of such meeting, in general terms the action proposed to be taken at such
meeting and the percentage of the principal amount of the Outstanding Securities of such series which shall constitute a quorum at
such meeting, shall be given, in the manner provided in Section 13.04 hereof, not less than 21 nor more than 180 days prior to the
date fixed for the meeting to holders of Outstanding Securities of such series. |
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(b) |
In
case at any time the Company, pursuant to a Board Resolution, or the holders of at least 10% in principal amount of the Outstanding
Securities of any series shall have requested the Trustee to call a meeting of the holders of Securities of such series for any purpose
specified in Section 8.06 hereof, by written request setting forth in reasonable detail the action proposed to be taken at the meeting,
and the Trustee shall not have made the first publication of the notice of such meeting within 21 days after receipt of such request
or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the holders of Securities
of such series in the amount specified, as the case may be, may determine the time and the place in The City of New York or Boston,
Massachusetts for such meeting and may call such meeting for such purposes by giving notice thereof as provided in paragraph (a)
of this Section. |
SECTION
8.08 Persons Entitled To Vote at Meetings.
To
be entitled to vote at any meeting of holders of Securities of a given series, a Person shall be (a) a holder of one or more Outstanding
Securities of such series or (b) a Person appointed by an instrument in writing as proxy for a holder or holders of one or more Outstanding
Securities of such series by such holder or holders. The only Persons who shall be entitled to be present or to speak at any meeting
of holders shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel
and any representatives of the Company and its counsel.
SECTION
8.09 Quorum; Action.
The
Persons entitled to vote a majority in aggregate principal amount of the Outstanding Securities of a given series shall constitute a
quorum with respect to a meeting of holders of Outstanding Securities of such series. In the absence of a quorum within 30 minutes of
the time appointed for any such meeting, the meeting shall, if convened at the request of holders of Securities of such series, be dissolved.
In any other case, the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior
to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned
for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in Section 8.07(a) hereof, except that such notice need
be given only once and not less than five days prior to the date on which the meeting is scheduled to be reconvened.
At
a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid, any resolution and all matters (except
as limited by the proviso to the first paragraph of Section 9.02 hereof) shall be effectively passed and decided if passed or decided
by the Persons entitled to vote not less than a majority in aggregate principal amount of Outstanding Securities of a series represented
and voting at such meeting with respect to a meeting of holders of Outstanding Securities of such series.
Any
resolution passed or decisions taken at any meeting of holders of Securities duly held in accordance with this Section shall be binding
on all the holders of Securities of such series, whether or not present or represented at the meeting.
SECTION
8.10 Determination of Voting Rights; Conduct and Adjournment of Meetings.
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(a) |
Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting
of holders of Securities in regard to proof of the holding of Securities and of the appointment of proxies and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem appropriate. |
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(b) |
The
Trustee shall, by an instrument in writing, appoint a temporary chairman (which may be the Trustee) of the meeting, unless the meeting
shall have been called by the Company or by holders of Securities of a given series as provided in Section 8.07(b) hereof, in which
case the Company or the holders of Securities of such series calling the meeting, as the case may be, shall in like manner appoint
a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled
to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting. |
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(c) |
At
any meeting, each holder of a Security of the series in respect of which such meeting is being held or proxy shall be entitled to
one vote for each $1,000 principal amount of Securities of such series held or represented by him; provided, however, that no vote
shall be cast or counted at any meeting in respect of any Security of such series challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a holder of a Security
of such series or proxy. |
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(d) |
Any
meeting of holders of Securities duly called pursuant to Section 8.07 hereof at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of the series in respect of which
such meeting is being held represented at the meeting, and the meeting may be held as so adjourned without further notice. |
SECTION
8.11 Counting Votes and Recording Action of Meetings.
The
vote upon any resolution submitted to any meeting of holders of Securities of a given series shall be by written ballots on which shall
be subscribed the signatures of the holders of Securities of such series or of their representatives by proxy and the principal amounts
and serial numbers of the Outstanding Securities of such series held or represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file
with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of holders of Securities of such series shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits
by one or more Persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was
given as provided in Section 8.07 hereof and, if applicable, Section 8.09 hereof. Each copy shall be signed and verified by the affidavits
of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company and another to the Trustee
to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
ARTICLE
IX
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:
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(a) |
cure
any ambiguity, correct or supplement any provision herein which may be inconsistent with any other provision herein or which is otherwise
defective, or make any other provisions with respect to matters or questions arising under this Indenture which the Company and the
Trustee may deem necessary or desirable and which shall not be inconsistent with the provisions of this Indenture; |
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to
comply with Article X; |
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to
provide for uncertificated Securities in addition to or in place of certificated Securities; |
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(d) |
to
add to the covenants of the Company for the benefit of the holders of all or any Series of Securities (and if such covenants are
to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein conferred upon the Company; |
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(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; |
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(f) |
to
make any change that does not adversely affect the rights of any Securityholder in any material respect; |
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(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; or |
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comply
with the requirements of the Commission in order to effect or maintain 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 written consent of the holders of at least a majority in aggregate principal amount of the Outstanding Securities of any series or
by action at a meeting of holders of the Securities of such series in accordance with Section 8.09, by the holders of a majority in aggregate
principal amount of the Securities of such series then Outstanding represented at such meeting, the Company, when authorized by Board
Resolutions, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as then in effect) for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner not covered
by Section 9.01 the rights of the holders of the Securities of such series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the holders of each Security then Outstanding and affected thereby, (i) extend the fixed maturity
of any Securities of any series, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any premium payable upon the redemption thereof, (ii) reduce the aforesaid percentage of Securities, the holders of
which are required to consent to any such supplemental indenture, or any consent or waiver, (iii) reduce the principal amount of discount
securities payable upon acceleration of the maturity of any Securities of any series or (iv) make the principal of or premium or interest
on any Security of a series payable in currency or currency units other than that stated in the Securities of such series.
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 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
of the Company, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated
by the Trustee and delivered in exchange for the Securities of that series then Outstanding.
SECTION
9.05 Execution of Supplemental Indentures.
Upon
the request of the Company, accompanied by its Board Resolutions authorizing the execution of any such supplemental indenture, and upon
the filing with the Trustee of evidence of the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall
join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be
obligated to enter into such supplemental indenture. The Trustee, subject to the provisions of Section 7.01, may receive an Opinion of
Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article is authorized or permitted by, and conforms
to, the terms of this Article and that it is proper for the Trustee under the provisions of this Article to join in the execution thereof;
provided, however, that such Opinion of Counsel need not be provided in connection with the execution of a supplemental indenture that
establishes the terms of a series of Securities pursuant to Section 2.01 hereof.
Promptly
after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, setting forth in general terms the substance of such supplemental indenture,
to the Securityholders of all series affected thereby as their names and addresses appear upon the Security Register. Any failure of
the Trustee to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental
indenture.
ARTICLE
X
SUCCESSOR
ENTITY
SECTION
10.01 Company May Consolidate, Etc.
Nothing
contained in this Indenture or in any of the Securities shall prevent any consolidation or merger of the Company with or into any other
Person (whether or not affiliated with the Company) or successive consolidations or mergers in which the Company or its successor or
successors shall be a party or parties, or shall prevent any sale, conveyance, transfer or other disposition of the property of the Company
or its successor or successors as an entirety, or substantially as an entirety, to any other corporation (whether or not affiliated with
the Company or its successor or successors) authorized to acquire and operate the same; provided, however, the Company hereby covenants
and agrees that, upon any such consolidation or merger (in each case, if the Company is not the survivor of such transaction), sale,
conveyance, transfer or other disposition, the due and punctual payment of the principal of (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) 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 due and punctual
payment of the principal of, premium, if any, and interest on all of the Securities of all series Outstanding and the due and punctual
performance of all of the covenants and conditions of this Indenture or established with respect to each series of the Securities
pursuant to Section 2.01 to be performed by the Company with respect to each series, such successor entity shall succeed to and be
substituted for the Company with the same effect as if it had been named as the Company herein, and thereupon the predecessor corporation
shall be relieved of all obligations and covenants under this Indenture and the Securities. |
|
|
|
|
(b) |
In
case of any such consolidation, merger, sale, conveyance, transfer or other disposition such changes in phraseology and form (but
not in substance) may be made in the Securities thereafter to be issued as may be appropriate. |
|
|
|
|
(c) |
Nothing
contained in this Article shall require any action by the Company in the case of a consolidation or merger of any Person into the
Company where the Company is the survivor of such transaction, or the acquisition by the Company, by purchase or otherwise, of all
or any part of the property of any other Person (whether or not affiliated with the Company). |
SECTION
10.03 Evidence of Consolidation, Etc. to Trustee.
The
Trustee, subject to the provisions of Section 7.01, may receive an Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale, conveyance, transfer or other disposition, and any such assumption, comply with the provisions of this Article.
ARTICLE
XI
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
(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 sufficient or a combination thereof, sufficient (assuming that no tax liability
will be imposed on the Trustee) in the opinion of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay at maturity or upon redemption all Securities of that series not theretofore delivered
to the Trustee for cancellation, including principal (and premium, if any) and interest due or to become due to such date of maturity
or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other sums payable hereunder
with respect to such series by the Company then this Indenture shall thereupon cease to be of further effect with respect to such series
except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that shall survive until the date of maturity or redemption
date, as the case may be, and Sections 7.06 and 11.05, that shall survive to such date and thereafter, and the Trustee, on demand of
the Company and at the cost and expense of the Company shall execute proper instruments acknowledging satisfaction of and discharging
this Indenture with respect to such series.
SECTION
11.02 Discharge of Obligations.
If
at any time all such Securities of a particular series not heretofore delivered to the Trustee for cancellation or that have not become
due and payable as described in Section 11.01 shall have been paid by the Company by depositing irrevocably with the Trustee as trust
funds moneys or an amount of Governmental Obligations sufficient to pay at maturity or upon redemption all such Securities of that series
not theretofore delivered to the Trustee for cancellation, including principal (and premium, if any) and interest due or to become due
to such date of maturity or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all
other sums payable hereunder by the Company with respect to such series, then after the date such moneys or Governmental Obligations,
as the case may be, are deposited with the Trustee the obligations of the Company under this Indenture with respect to such series shall
cease to be of further effect except for the provisions of Sections 2.03, 2.05, 2.07, 4,01, 4.02, 4.03, 7.06, 7.10 and 11.05 hereof that
shall survive until such Securities shall mature and be paid thereafter, Sections 7.06 and 11.05 shall survive.
SECTION
11.03 Deposited Moneys to be Held in Trust.
Subject
to Section 11.05, 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 or interest on the Securities of a particular series that are not applied but remain unclaimed by the holders
of such Securities for 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, shall be repaid to the Company or (if then held by the Company) shall be discharged from such
trust in each case, promptly after the end of any such two-year period or, at the request of the Company, on a later date specified by
the Company; 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 an unsecured
general creditor, look only to the Company for the payment thereof.
ARTICLE
XII
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
XIII
MISCELLANEOUS
PROVISIONS
SECTION
13.01 Effect on Successors and Assigns.
All
the covenants, stipulations, promises and agreements in this Indenture contained 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 or demand that by any provision of this Indenture is required or permitted to be given
or served by the Trustee or by the holders of Securities to or on the Company may be given or served by being deposited first class postage
prepaid in a post-office letterbox addressed (until another address is filed in writing by the Company with the Trustee), as follows:
Microbot Medical Inc., Attn: [ ], 25 Recreation Park Drive, Unit 108, Hingham, MA 02043. Any notice, election, request or demand by the
Company or any Securityholder 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. Any notice or communication to a holder shall be mailed by first-class
mail to his address shown on the Security Register kept by the Security Registrar.
Failure
to mail a notice or communication to a holder or any defect in such notice or communication shall not affect its sufficiency with respect
to other holders. If a notice or communication is mailed or sent in the manner provided above within the time prescribed, it is duly
given as of the date it is mailed, whether or not the addressee receives it, except that notice to the Trustee or the Company shall only
be effective upon receipt thereof by the Trustee or the Company, respectively. If the Company mails a notice or communication to holders
of Securities, it shall mail a copy to the Trustee at the same time.
SECTION
13.05 Governing Law.
This
Indenture and each Security shall be deemed to be a contract made under the internal laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of said State.
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 Compliance Certificates and Opinions.
|
(a) |
Upon
any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company,
shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent have been complied with, except that in the case of any such application or demand as to which the furnishing
of such documents is specifically required by any provision of this Indenture relating to such particular application or demand,
no additional certificate or opinion need be furnished. |
|
|
|
|
(b) |
Each
certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or
covenant in this Indenture shall include (1) a statement that the Person making such certificate or opinion has read such covenant
or condition; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (3) a statement that, in the opinion of such Person, he has made such examination
or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has
been complied with; and (4) a statement as to whether or not, in the opinion of such Person, such 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 as set forth in an Officers’ Certificate, or established
in one or more indentures supplemental to this Indenture, in any case where the date of maturity of interest or principal of any Security
or the date of redemption of any Security shall not be a Business Day, then payment of interest or principal (and premium, if any) may
be made on the next succeeding Business Day with the same force and effect as if made on the nominal date of maturity or redemption,
and no interest shall accrue for the period after such nominal date.
SECTION
13.09 Conflict with Trust Indenture Act.
If
and to the extent that any provision of this Indenture limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION
13.10 Counterparts.
This
Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute
but one and the same instrument.
SECTION
13.11 Separability.
In
case any one or more of the provisions contained in this Indenture or in the Securities of any series shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions
of this Indenture or of such Securities, but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
SECTION
13.12 Assignment.
The
Company will have the right at all times to assign any of its rights or obligations under this Indenture to a direct or indirect wholly-owned
Subsidiary of the Company, provided that, in the event of any such assignment, the Company, will remain liable for all such obligations.
Subject to the foregoing, this Indenture is binding upon and inures to the benefit of the parties thereto and their respective successors
and assigns. This Indenture may not otherwise be assigned by the parties thereto.
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written.
|
MICROBOT
MEDICAL INC. |
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
|
|
|
|
[ ], |
|
As
Trustee |
|
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
Exhibit
4.5
MICROBOT
MEDICAL INC.
Issuer
AND
[ ]
Trustee
INDENTURE
Dated
as of [ ]
Subordinated
Debt Securities
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(a) |
311(b). |
|
7.13(b) |
311(c). |
|
Inapplicable |
312(a) |
|
5.02(a) |
312(b). |
|
5.02(b) |
312(c). |
|
5.02(c) |
313(a). |
|
5.04(a) |
313(b). |
|
5.04(a) |
313(c). |
|
5.04(a) |
|
|
5.04(b) |
313(d). |
|
5.04(b) |
314(a). |
|
5.03 |
314(b). |
|
Inapplicable |
314(c). |
|
13.06 |
314(d). |
|
Inapplicable |
314(e). |
|
13.06 |
314(f). |
|
Inapplicable |
315(a). |
|
7.01(a) |
|
|
7.02 |
315(b). |
|
6.07 |
315(c). |
|
7.01 |
315(d). |
|
7.01(b) |
|
|
7.01(c) |
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). |
|
13.08 |
(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. |
TABLE
OF CONTENTS (2)
|
Page |
ARTICLE
I DEFINITIONS |
1 |
|
SECTION
1.01 |
|
Definitions
of Terms |
1 |
ARTICLE
II ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
4 |
|
SECTION
2.01 |
|
Designation
and Terms of Securities |
4 |
|
SECTION
2.02 |
|
Form
of Securities and Trustee’s Certificate |
5 |
|
SECTION
2.03 |
|
Denominations:
Provisions for Payment |
6 |
|
SECTION
2.04 |
|
Execution
and Authentications |
7 |
|
SECTION
2.05 |
|
Registration
of Transfer and Exchange |
7 |
|
SECTION
2.06 |
|
Temporary
Securities |
8 |
|
SECTION
2.07 |
|
Mutilated,
Destroyed, Lost or Stolen Securities |
9 |
|
SECTION
2.08 |
|
Cancellation |
9 |
|
SECTION
2.09 |
|
Benefits
of Indenture |
9 |
|
SECTION
2.10 |
|
Authenticating
Agent |
9 |
|
SECTION
2.11 |
|
Global
Securities |
10 |
ARTICLE
III REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS |
11 |
|
SECTION
3.01 |
|
Redemption |
11 |
|
SECTION
3.02 |
|
Notice
of Redemption |
11 |
|
SECTION
3.03 |
|
Payment
Upon Redemption |
12 |
|
SECTION
3.04 |
|
Sinking
Fund |
12 |
|
SECTION
3.05 |
|
Satisfaction
of Sinking Fund Payments with Securities |
12 |
|
SECTION
3.06 |
|
Redemption
of Securities for Sinking Fund |
12 |
ARTICLE
IV COVENANTS |
13 |
|
SECTION
4.01 |
|
Payment
of Principal, Premium and Interest |
13 |
|
SECTION
4.02 |
|
Maintenance
of Office or Agency |
13 |
|
SECTION
4.03 |
|
Paying
Agents |
13 |
|
SECTION
4.04 |
|
Appointment
to Fill Vacancy in Office of Trustee |
14 |
|
SECTION
4.05 |
|
Compliance
with Consolidation Provisions |
14 |
ARTICLE
V SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
14 |
|
SECTION
5.01 |
|
Company
to Furnish Trustee Names and Addresses of Securityholders |
14 |
|
SECTION
5.02 |
|
Preservation
of Information; Communications with Securityholders |
14 |
|
SECTION
5.03 |
|
Reports
by the Company |
15 |
|
SECTION
5.04 |
|
Reports
by the Trustee |
15 |
ARTICLE
VI REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
15 |
|
SECTION
6.01 |
|
Events
of Default |
15 |
|
SECTION
6.02 |
|
Collection
of Indebtedness and Suits for Enforcement by Trustee |
17 |
|
SECTION
6.03 |
|
Application
of Moneys Collected |
18 |
|
SECTION
6.04 |
|
Limitation
on Suits |
18 |
|
SECTION
6.05 |
|
Rights
and Remedies Cumulative; Delay or Omission Not Waiver |
19 |
|
SECTION
6.06 |
|
Control
by Securityholders |
19 |
|
SECTION
6.07 |
|
Undertaking
to Pay Costs |
20 |
ARTICLE
VII CONCERNING THE TRUSTEE |
20 |
|
SECTION
7.01 |
|
Certain
Duties and Responsibilities of Trustee |
20 |
|
SECTION
7.02 |
|
Certain
Rights of Trustee |
21 |
|
SECTION
7.03 |
|
Trustee
Not Responsible for Recitals or Issuance of Securities |
22 |
|
SECTION 7.04 |
|
May Hold Securities |
22 |
|
SECTION 7.05 |
|
Moneys Held in Trust |
22 |
|
SECTION 7.06 |
|
Compensation and Reimbursement |
22 |
|
SECTION 7.07 |
|
Reliance on Officers’ Certificate |
23 |
|
SECTION 7.08 |
|
Disqualification; Conflicting Interests |
23 |
|
SECTION 7.09 |
|
Corporate Trustee Required; Eligibility |
23 |
|
SECTION 7.10 |
|
Resignation and Removal; Appointment of Successor |
23 |
|
SECTION 7.11 |
|
Acceptance of Appointment By Successor |
24 |
|
SECTION 7.12 |
|
Merger, Conversion, Consolidation or Succession to Business |
25 |
|
SECTION 7.13 |
|
Preferential Collection of Claims Against the Company |
25 |
ARTICLE VIII CONCERNING THE SECURITYHOLDERS |
26 |
|
SECTION 8.01 |
|
Evidence of Action by Securityholders |
26 |
|
SECTION 8.02 |
|
Proof of Execution by Securityholders |
26 |
|
SECTION 8.03 |
|
Who May be Deemed Owners |
26 |
|
SECTION 8.04 |
|
Certain Securities Owned by Company Disregarded |
26 |
|
SECTION 8.05 |
|
Actions Binding on Future Securityholders |
27 |
|
SECTION 8.06 |
|
Purposes for Which Meetings May Be Called |
27 |
|
SECTION 8.07 |
|
Call Notice and Place of Meetings |
27 |
|
SECTION 8.08 |
|
Persons Entitled To Vote at Meetings |
27 |
|
SECTION 8.09 |
|
Quorum; Action |
28 |
|
SECTION 8.10 |
|
Determination of Voting Rights; Conduct and Adjournment of Meetings |
28 |
|
SECTION 8.11 |
|
Counting Votes and Recording Action of Meetings |
29 |
ARTICLE IX SUPPLEMENTAL INDENTURES |
29 |
|
SECTION 9.01 |
|
Supplemental Indentures Without the Consent of Securityholders |
29 |
|
SECTION 9.02 |
|
Supplemental Indentures With Consent of Securityholders |
30 |
|
SECTION 9.03 |
|
Effect of Supplemental Indentures |
30 |
|
SECTION 9.04 |
|
Securities Affected by Supplemental Indentures |
31 |
|
SECTION 9.05 |
|
Execution of Supplemental Indentures |
31 |
ARTICLE X SUCCESSOR ENTITY |
31 |
|
SECTION 10.01 |
|
Company May Consolidate, Etc |
31 |
|
SECTION 10.02 |
|
Successor Entity Substituted |
32 |
|
SECTION 10.03 |
|
Evidence of Consolidation, Etc. to Trustee |
32 |
ARTICLE XI SATISFACTION AND DISCHARGE |
32 |
|
SECTION 11.01 |
|
Satisfaction and Discharge of Indenture |
32 |
|
SECTION 11.02 |
|
Discharge of Obligations |
33 |
|
SECTION 11.03 |
|
Deposited Moneys to be Held in Trust |
33 |
|
SECTION 11.04 |
|
Payment of Moneys Held by Paying Agents |
33 |
|
SECTION 11.05 |
|
Repayment to Company |
33 |
ARTICLE XII IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
33 |
|
SECTION 12.01 |
|
No Recourse |
33 |
ARTICLE XIII MISCELLANEOUS PROVISIONS |
34 |
|
SECTION 13.01 |
|
Effect on Successors and Assigns |
34 |
|
SECTION 13.02 |
|
Actions by Successor |
34 |
|
SECTION 13.03 |
|
Surrender of Company Powers |
34 |
|
SECTION 13.04 |
|
Notices |
34 |
|
SECTION 13.05 |
|
Governing Law |
34 |
|
SECTION 13.06 |
|
Treatment of Securities as Debt |
34 |
|
SECTION 13.07 |
|
Compliance Certificates and Opinions |
35 |
|
SECTION 13.08 |
|
Payments on Business Days |
35 |
|
SECTION 13.09 |
|
Conflict with Trust Indenture Act |
35 |
|
SECTION 13.10 |
|
Counterparts |
35 |
|
SECTION 13.11 |
|
Separability |
35 |
|
SECTION 13.12 |
|
Assignment |
35 |
ARTICLE XIV SUBORDINATION OF SECURITIES |
36 |
|
SECTION 14.01 |
|
Subordination Terms |
36 |
(2) |
This Table of Contents does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms and provisions. |
|
INDENTURE,
dated as of [ ], by and between Microbot Medical Inc., a Delaware corporation (the “Company”), and [ ], as trustee (the “Trustee”):
WHEREAS,
for its lawful corporate purposes, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance
of subordinated 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
I
DEFINITIONS
SECTION
1.01 Definitions of Terms.
The
terms defined in this Section (except as in this Indenture 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 otherwise
expressly provided or unless the context otherwise requires), shall have the meanings assigned to such terms in said Trust Indenture
Act and in said Securities Act as in force at the date of the execution of this instrument.
“Authenticating
Agent” means an authenticating agent with respect to all or any of the series of Securities appointed with respect to all or any
series of the Securities by the Trustee pursuant to Section 2.10.
“Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
“Board
of Directors” means the Board of Directors of the Company or any duly authorized committee of such Board.
“Board
Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the date of such certification.
“Business
Day” means, with respect to any series of Securities, any day other than a day on which Federal or State banking institutions in
the Borough of Manhattan, the City and State of New York, are authorized or obligated by law, executive order or regulation to close.
“Certificate”
means a certificate signed by the principal executive officer, the principal financial officer or the principal accounting officer of
the Company. The Certificate need not comply with the provisions of Section 13.07.
“Commission”
means the Securities and Exchange Commission.
“Company”
means the corporation named as the “Company” in the first paragraph of this instrument until a successor corporation shall
have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor
corporation.
“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 [ ], except that whenever a provision herein refers to an office or agency
of the Trustee in the Borough of Manhattan, the City and State of New York, such office is located, at the date hereof, at [ ].
“Custodian”
means any receiver, trustee, assignee, liquidator, or similar official under any Bankruptcy Law.
“Default”
means an event which is, or after notice or lapse of time, or both, would constitute an Event of Default.
“Depositary”
means, with respect to Securities of any series, for which the Company shall determine that such Securities will be issued as a Global
Security, The Depository Trust Company, New York, New York, another clearing agency, or any successor registered as a clearing agency
under the 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 Section 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 Securities Exchange Act of 1934, as amended.
“Global
Security” means, with respect to any series of Securities, a Security executed by the Company and delivered by the Trustee to the
Depositary or pursuant to the Depositary’s instruction, all in accordance with this Indenture, which shall be registered in the
name of the Depositary or its nominee.
“Governmental
Obligations” means securities that are (i) direct obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) 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 non-callable at the option of the issuer thereof, and shall also include a depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with respect to any such Governmental
Obligation or a specific payment of principal of or interest on any such Governmental Obligation held by such custodian for the account
of the holder of such depositary receipt; provided, however, that (except as required by law) such custodian is not authorized to make
any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of
the Governmental Obligation or the specific payment of principal of or interest on the Governmental Obligation evidenced by such depositary
receipt.
“herein,”
“hereof” and “hereunder,” and other words of similar import, refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
“Indenture”
means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental
hereto entered into in accordance with the terms hereof.
“Interest
Payment Date,” when used with respect to any installment of interest on a Security of a particular series, means the date specified
in such Security or in a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date on which
an installment of interest with respect to Securities of that series is due and payable.
“Officers’
Certificate” means a certificate signed by the President or a Vice President and by the Chief Financial Officer, Vice President
of Finance, the Treasurer or an Assistant Treasurer or the Controller or an Assistant Controller or the Secretary or an Assistant Secretary
of the Company that is delivered to the Trustee in accordance with the terms hereof. 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 a written opinion of counsel, who may be counsel to the Company (and may include directors or employees of the
Company) and which opinion is acceptable to the Trustee which acceptance shall not be unreasonably withheld.
“Outstanding”,
when used with reference to Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time, all
Securities of that series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore
canceled by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that have previously
been canceled; (b) Securities or portions thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary
amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside
and segregated in trust by the Company (if the Company shall act as its own paying agent); provided, however, that if such Securities
or portions of such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as in
Article III provided, or provision satisfactory to the Trustee shall have been made for giving such notice; and (c) Securities in lieu
of or in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.07.
“Person”
means any individual, corporation, limited liability company, partnership, joint-venture, association, joint-stock company, trust, estate,
unincorporated organization or government or any agency or political subdivision 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 mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
“Responsible
Officer,” when used with respect to the Trustee, means any officer of the Trustee, including any vice president, assistant vice
president, secretary, assistant secretary, the treasurer, any assistant treasurer, the managing director 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 such officer’s knowledge of
and familiarity with the particular subject.
“Securities”
means the debt Securities authenticated and delivered under this Indenture.
“Security
Register” has the meaning specified in Section 2.05.
“Security
Registrar” has the meaning specified in Section 2.05.
“Securityholder,”
“holder of Securities,” “registered holder,” or other similar term, means the Person or Persons in whose name
or names a particular Security shall be registered in the Security Register.
“Subsidiary”
means, with respect to any Person, (i) any corporation at least a majority of whose outstanding Voting Stock shall at the time be owned,
directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, (ii)
any general partnership, joint venture or similar entity, at least a majority of whose outstanding partnership or similar interests shall
at the time be owned by such Person, or by one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries and
(iii) any limited partnership of which such Person or any of its Subsidiaries is a general partner.
“Trustee”
means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean such successor Trustee.
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, subject to the provisions of Sections 9.01, 9.02, and 10.01,
as in effect at the date of execution of this instrument; provided, however, that in the event the Trust Indenture Act is amended after
such date, Trust Indenture Act means, to the extent required by such amendment, the Trust Indenture Act of 1939, as so amended, or any
successor statute.
“Voting
Stock,” as applied to any Person, means shares, interests, participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election of a majority of the directors (or the equivalent) of such Person,
other than shares, interests, participations or other equivalents having such power only by reason of the occurrence of a contingency.
ARTICLE
II
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 of the Company or pursuant to one or more indentures supplemental hereto. Prior to the initial
issuance of Securities of a given series, there shall be established in or pursuant to a Board Resolution of the Company, and set
forth in an Officers’ Certificate of the Company, or established in one or more indentures supplemental hereto: |
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(1) |
the
title of the Security of the series (which shall distinguish the Securities of the series from all other Securities); |
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(2) |
the
aggregate principal amount of the Securities of such series initially to be issued and 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); |
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(3) |
the
currency or units based on or relating to currencies in which debt securities of such series are denominated and the currency or
units in which principal or interest or both will or may be payable; |
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(4) |
the
date or dates on which the principal of the Securities of the series is payable and the place(s) of payment; |
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(5) |
the
rate or rates at which the Securities of the series shall bear interest or the manner of calculation of such rate or rates, if any; |
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(6) |
the
date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest will be payable or the manner
of determination of such Interest Payment Dates, the place(s) of payment, and the record date for the determination of holders to
whom interest is payable on any such Interest Payment Dates or the method for determining such dates; |
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(7) |
the
right, if any, to extend the interest payment periods or to defer the payment of interest and the duration of such extension; |
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(8) |
the
period or periods within which, the price or prices at which and the terms and conditions upon which, Securities of the series may
be redeemed, in whole or in part, at the option of the Company; |
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(9) |
the
obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund or analogous provisions
(including payments made in cash in satisfaction of future sinking fund obligations) or at the option of a holder thereof and the
period or periods within which, the price or prices at which, and the terms and conditions upon which, Securities of the series shall
be redeemed or purchased, in whole or in part, pursuant to such obligation; |
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(10) |
whether
or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
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(11) |
the
form of the Securities of the series including the form of the Certificate of Authentication for such series; |
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(12) |
if
other than denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, the denominations in which the Securities
of the series shall be issuable; |
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(13) |
any
and all other terms with respect to such series (which terms shall not be inconsistent with the terms of this Indenture, as amended
by any supplemental indenture) including any terms which may be required by or advisable under United States laws or regulations
or advisable in connection with the marketing of Securities of that series; |
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(14) |
whether
the Securities are issuable as a Global Security and, in such case, the identity of the Depositary for such series; |
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(15) |
whether
the Securities will be convertible into shares of common stock or other securities of the Company and, if so, the terms and conditions
upon which such Securities will be so convertible, including the conversion price and the conversion period; |
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(16) |
if
other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 6.01; |
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(17) |
any
additional or different Events of Default or restrictive covenants provided for with respect to the Securities of the series; and |
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(18) |
the
subordination terms of the Securities of the series. |
All
Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or
pursuant to any such Board Resolution or in any indentures supplemental hereto.
If
any of the terms of the series are established by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate
record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Officers’ Certificate of the Company setting forth the terms of the series.
Securities
of any particular series may be issued at various times, with different dates on which the principal or any installment of principal
is payable, with different rates of interest, if any, or different methods by which rates of interest may be determined, with different
dates on which such interest may be payable and with different redemption dates.
SECTION
2.02 Form of Securities and Trustee’s Certificate.
The
Securities of any series and the Trustee’s certificate of authentication to be borne by such Securities shall be substantially
of the tenor and purport as set forth in one or more indentures supplemental hereto or as provided in a Board Resolution of the Company
and as set forth in an Officers’ Certificate of the Company and 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 stock 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)(12). The Securities of a particular series shall bear interest payable on the dates and
at the rate specified with respect to that series. The principal of and the interest on the Securities of any series, as well as any
premium thereon in case of redemption thereof prior to maturity, shall be payable in the coin or currency of the United States of America
that at the time is legal tender for public and private debt, at the office or agency of the Company maintained for that purpose in the
Borough of Manhattan, the City and State of New York. Each Security shall be dated the date of its authentication. Interest on the Securities
shall be computed on the basis of a 360-day year composed of twelve 30-day months.
The
interest installment on any Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities
of that series shall be paid to the Person in whose name said Security (or one or more Predecessor Securities) is registered at the close
of business on the regular record date for such interest installment. In the event that any Security of a particular series or portion
thereof is called for redemption and the redemption date is subsequent to a regular record date with respect to any Interest Payment
Date and prior to such Interest Payment Date, interest on such Security will be paid upon presentation and surrender of such Security
as provided in Section 3.03.
Any
interest on any Security that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date for Securities
of the same series (herein called “Defaulted Interest”) shall forthwith cease to be payable to the registered holder on the
relevant regular record date by virtue of having been such holder; and such Defaulted Interest shall be paid by the Company, at its election,
as provided in clause (1) or clause (2) below:
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(1) |
The
Company may make payment of any Defaulted Interest on Securities to the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered at the close of business on a special record date for the payment of such Defaulted Interest,
which shall be fixed in the following manner: the Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Security and the date of the proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted Interest which shall not be more than 15 nor less than 10 days
prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such special record date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the special record date therefor to be mailed, first class
postage prepaid, to each Securityholder at his or her address as it appears in the Security Register, not less than 10 days prior
to such special record date. Notice of the proposed payment of such Defaulted Interest and the special record date therefor having
been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered on such special record date. |
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(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 of the Company 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 with respect to 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 last 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 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 its President, or one of its Vice Presidents, or its Treasurer, or one of its
Assistant Treasurers, or its Secretary, or one of its Assistant Secretaries, under its corporate seal attested by its Secretary or one
of its Assistant Secretaries. 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 a President or Vice President thereof, or of any Person who shall have been a Treasurer or Assistant
Treasurer thereof, or of any Person who shall have been a Secretary or Assistant Secretary thereof, notwithstanding the fact that at
the time the Securities shall be authenticated and delivered or disposed of such Person shall have ceased to be the President or a Vice
President, the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary, of the Company. The seal of the Company
may be in the form of a facsimile of such seal and may be impressed, affixed, imprinted or otherwise reproduced on the Securities. The
Securities may contain such notations, legends or endorsements required by law, stock exchange rule or usage. Each Security shall be
dated the date of its authentication.
A
Security shall not be valid or obligatory for any purpose and shall not be entitled to any benefit under this Indenture, in each case,
until authenticated with a certificate of authentication manually signed by an authorized signatory of the Trustee, or by an Authenticating
Agent. Such certificate shall be conclusive evidence, and the only evidence, that the Security so authenticated has been duly authenticated
and delivered hereunder and that the Security 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 its
President or any Vice President and its Secretary or any Assistant Secretary, and the Trustee in accordance with such written order shall
authenticate and deliver such Securities.
In
authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall be fully protected in relying upon, an Opinion of Counsel stating
that the form and terms thereof have been established in conformity with the provisions of this Indenture.
The
Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect
the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner that is not reasonably
acceptable to the Trustee.
SECTION
2.05 Registration of Transfer and Exchange.
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(a) |
Securities
of any series may be exchanged upon presentation thereof at the office or agency of the Company designated for such purpose in the
Borough of Manhattan, the City and State of New York, for other Securities of such series of authorized denominations, and for a
like aggregate principal amount, upon payment of a sum sufficient to cover any tax or other governmental charge in relation thereto,
all as provided in this Section. In respect of any Securities so surrendered for exchange, the Company shall execute, the Trustee
shall authenticate and such office or agency shall deliver in exchange therefor the Security or Securities of the same series that
the Securityholder making the exchange shall be entitled to receive, bearing numbers not contemporaneously outstanding. |
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(b) |
The
Company shall keep, or cause to be kept, at its office or agency designated for such purpose in the Borough of Manhattan, the City
and State of New York, or such other location designated by the Company a register or registers (herein referred to as the “Security
Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall register the Securities
and the transfers of Securities as in this Article provided and which at all reasonable times shall be open for inspection by the
Trustee. The registrar for the purpose of registering Securities and transfer of Securities as herein provided shall be appointed
as authorized by Board Resolution (the “Security Registrar”). |
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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. |
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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. |
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(c) |
No
service charge shall be made for any exchange or registration of transfer of Securities, or issue of new Securities in case of partial
redemption of any series, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge in
relation thereto, other than exchanges pursuant to Section 2.06, Section 3.03(b) and Section 9.04 not involving any transfer. |
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The
Company shall not be required (i) to issue, exchange or register the transfer of any Securities during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of redemption of less than all the Outstanding Securities of
the same series and ending at the close of business on the day of such mailing, nor (ii) to register the transfer of or exchange
any Securities of any series or portions thereof called for redemption. The provisions of this Section 2.05 are, with respect to
any Global Security, subject to Section 2.11 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 holders), at the office or agency of the Company designated for the purpose in the Borough of Manhattan, the City and State of New
York, and the Trustee shall authenticate and such office or agency shall deliver in exchange for such temporary Securities an equal aggregate
principal amount of definitive Securities of such series, unless the Company advises the Trustee to the effect that definitive Securities
need not be executed and furnished until further notice from the Company. Until so exchanged, the temporary Securities of such series
shall be entitled to the same benefits under this Indenture as definitive Securities of such series authenticated and delivered hereunder.
SECTION
2.07 Mutilated, Destroyed, Lost or Stolen Securities.
In
case any temporary or definitive Security shall become mutilated or be destroyed, lost or stolen, the Company (subject to the next succeeding
sentence) shall execute, and upon the Company’s request the Trustee (subject as aforesaid) shall authenticate and deliver, a new
Security of the same series, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security,
or in lieu of and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security
shall furnish to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, and,
in every case of destruction, loss or theft, the applicant shall also furnish to the Company and the Trustee evidence to their satisfaction
of the destruction, loss or theft of the applicant’s Security and of the ownership thereof. The Trustee may authenticate any such
substituted Security and deliver the same upon the written request or authorization of any officer of the Company. Upon the issuance
of any substituted Security, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith. In case
any Security that has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead
of issuing a substitute Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated
Security) if the applicant for such payment shall furnish to the Company and the Trustee such security or indemnity as they may require
to save them harmless, and, in case of destruction, loss or theft, evidence to the satisfaction of the Company and the Trustee of the
destruction, loss or theft of such Security and of the ownership thereof.
Every
replacement Security issued pursuant to the provisions of this Section shall constitute an additional contractual obligation of the Company
whether or not the mutilated, destroyed, lost or stolen Security shall be found at any time, or be enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of the same series duly
issued hereunder. All Securities shall be held and owned upon the express condition that the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities, and shall preclude (to the extent lawful) any
and all other rights or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without their surrender.
SECTION
2.08 Cancellation.
All
Securities surrendered for the purpose of payment, redemption, exchange or registration of transfer shall, if surrendered to the Company
or any paying agent, be delivered to the Trustee for cancellation, or, if surrendered to the Trustee, shall be 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 (and, with respect to the provisions of Article XIV, the holders of Senior Indebtedness, as
defined in any supplement to this Indenture pursuant to Article XIV) any legal or equitable right, remedy or claim under or in respect
of this Indenture, or under any covenant, condition or provision herein contained; all such covenants, conditions and provisions being
for the sole benefit of the parties hereto and of the holders of the Securities (and, with respect to the provisions of Article XIV,
the holders of Senior Indebtedness).
SECTION
2.10 Authenticating Agent.
So
long as any of the Securities of any series remain Outstanding there may be an Authenticating Agent for any or all such series of Securities
which the Trustee shall have the right to appoint. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, transfer or partial redemption thereof, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. All
references in this Indenture to the authentication of Securities by the Trustee shall be deemed to include authentication by an Authenticating
Agent for such series. Each Authenticating Agent shall be acceptable to the Company and shall be a corporation that has a combined capital
and surplus, as most recently reported or determined by it, sufficient under the laws of any jurisdiction under which it is organized
or in which it is doing business to conduct a trust business, and that is otherwise authorized under such laws to conduct such business
and is subject to supervision or examination by Federal or State authorities. If at any time any Authenticating Agent shall cease to
be eligible in accordance with these provisions, it shall resign immediately.
Any
Authenticating Agent may at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may
at any time (and upon request by the Company shall) terminate the agency of any Authenticating Agent by giving written notice of termination
to such Authenticating Agent and to the Company. Upon resignation, termination or cessation of eligibility of any Authenticating Agent,
the Trustee may appoint an eligible successor Authenticating Agent acceptable to the Company. Any successor Authenticating Agent, upon
acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder as if
originally named as an Authenticating Agent pursuant hereto.
SECTION
2.11 Global Securities
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(a) |
If
the Company shall establish pursuant to Section 2.01 that some or all of 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, the
Outstanding Securities of such series which are to be issued as a Global Security, (ii) shall be registered in the name of the Depositary
or its nominee, (iii) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction and (iv)
shall bear a legend substantially to the following effect: “Except as otherwise provided in Section 2.11 of the Indenture,
this Security may be transferred, in whole but not in part, only to another nominee of the Depositary or to a successor Depositary
or to a nominee of such successor Depositary.” |
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(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. |
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(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, this Section 2.11 shall no
longer be applicable to the Securities of such series and the Company will execute, and subject to Section 2.05, 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 2.05, the Trustee, upon receipt of an Officers’ Certificate evidencing such
determination by the Company, will authenticate and deliver the Securities of such series in definitive registered form without coupons,
in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security of such series
in exchange for such Global Security. Upon the exchange of the Global Security for such Securities in definitive registered form
without coupons, in authorized denominations, the Global Security shall be canceled by the Trustee. Such Securities in definitive
registered form issued in exchange for the Global Security pursuant to this Section 2.11(c) shall be registered in such names and
in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Securities to the Depositary for delivery to the Persons in whose names
such Securities are so registered. |
ARTICLE
III
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.
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(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 the right reserved so to do, the Company shall, or shall cause the Trustee to, give notice of such redemption
to holders of the Securities of such series to be redeemed by mailing, first class postage prepaid, a notice of such redemption not
less than 30 days and not more than 90 days before the date fixed for redemption of that series to such holders at their last addresses
as they shall appear upon the Security Register unless a shorter period is specified in the Securities to be redeemed. Any notice
that is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the registered
holder receives the notice. In any case, failure duly to give such notice to the holder of any Security of any series designated
for redemption in whole or in part, or any defect in the notice, shall not affect the validity of the proceedings for the redemption
of any other Securities of such series or any other series. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish
the Trustee with an Officers’ Certificate evidencing compliance with any such restriction. |
Each
such notice of redemption shall specify the date fixed for redemption and the redemption price at which Securities of that series are
to be redeemed, and shall state that payment of the redemption price of such Securities to be redeemed will be made at the office or
agency of the Company in the Borough of Manhattan, the City and State of New York, upon presentation and surrender of such Securities,
that interest accrued to the date fixed for redemption will be paid as specified in said notice, that from and after said date interest
will cease to accrue and that the redemption is for a sinking fund, if such is the case. If less than all the Securities of a series
are to be redeemed, the notice to the holders of Securities of that series to be redeemed in whole or 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.
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(b) |
If
less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 30 days’ notice in
advance of the date fixed for redemption as to the aggregate principal amount of Securities of the series to be redeemed, and thereupon
the Trustee shall select, by lot or in such other manner as it shall deem appropriate and fair in its discretion and that may provide
for the selection of a portion or portions (equal to one thousand U.S. dollars ($1,000) or any integral multiple thereof) of the
principal amount of such Securities of a denomination larger than $1,000, the Securities to be redeemed and shall thereafter promptly
notify the Company in writing of the numbers of the Securities to be redeemed, in whole or in part. The Company may, if and whenever
it shall so elect, by delivery of instructions signed on its behalf by its President or any Vice President, 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.
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(a) |
If
the giving of notice of redemption shall have been completed as above provided, the Securities or portions of Securities of the series
to be redeemed specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for redemption and interest on such Securities or portions of
Securities shall cease to accrue on and after the date fixed for redemption, unless the Company shall default in the payment of such
redemption price and accrued interest with respect to any such Security or portion thereof. On presentation and surrender of such
Securities on or after the date fixed for redemption at the place of payment specified in the notice, said Securities shall be paid
and redeemed at the applicable redemption price for such series, together with interest accrued thereon to the date fixed for redemption
(but if the date fixed for redemption is an interest payment date, the interest installment payable on such date shall be payable
to the registered holder at the close of business on the applicable record date pursuant to Section 2.03). |
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(b) |
Upon
presentation of any Security of such series that is to be redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Security is presented shall deliver to the holder thereof, at the expense of the
Company, a new Security of the same series of authorized denominations in principal amount equal to the unredeemed portion of the
Security so presented. |
SECTION
3.04 Sinking Fund.
The
provisions of Sections 3.04, 3.05 and 3.06 shall be applicable to any sinking fund for the retirement of Securities of a series, except
as otherwise specified as contemplated by Section 2.01 for Securities of such series.
The
minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory
sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of any series is
herein referred to as an “optional sinking fund payment.” If provided for by the terms of Securities of any series, the cash
amount of any sinking fund payment may be subject to reduction as provided in Section 3.05. Each sinking fund payment shall be applied
to the redemption of Securities of any series as provided for by the terms of Securities of such series.
SECTION
3.05 Satisfaction of Sinking Fund Payments with Securities.
The
Company (i) may deliver Outstanding Securities of a series (other than any Securities previously called for redemption) 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, the Company will deliver to the Trustee an Officers’
Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of the series, the portion
thereof, if any, that is to be satisfied by delivering and crediting Securities of that series pursuant to Section 3.05 and the basis
for such credit and will, together with such Officers’ Certificate, deliver to the Trustee any Securities to be so delivered. Not
less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 3.02 and cause notice of the redemption thereof to be given in the name of and at
the expense of the Company in the manner provided in Section 3.02. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Section 3.03.
ARTICLE
IV
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.
SECTION
4.02 Maintenance of Office or Agency.
So
long as any series of the Securities remain Outstanding, the Company agrees to maintain an office or agency in the Borough of Manhattan,
the City and State of New York, with respect to each such series and at such other location or locations as may be designated as provided
in this Section 4.02, where (i) Securities of that series may be presented or surrendered 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 its President or a Vice President 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.
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: |
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(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; |
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(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; |
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(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 |
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(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 with monies held by all other paying agents 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 (an 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 any paying agent to the Trustee, 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.
SECTION
4.05 Compliance with Consolidation Provisions.
The
Company will not, while any of the Securities remain Outstanding, consolidate with or merge into any other Person, in either case where
the Company is not the survivor of such transaction, or sell or convey all or substantially all of its property to any other company
unless the provisions of Article X hereof are complied with.
ARTICLE
V
SECURITYHOLDERS’
LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION
5.01 Company to Furnish Trustee Names and Addresses of Securityholders.
If
the Company is not the Security Register, the Company will furnish or use reasonable efforts to cause to be furnished to the Trustee
(a) on 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.
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(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) and shall otherwise
comply with Section 312(a) of the Trust Indenture Act. |
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(b) |
The
Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished. |
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(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. |
SECTION
5.03 Reports by the Company.
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(a) |
The
Company covenants and agrees to file with the Trustee, within 15 days after the Company is required to file 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 may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or
reports pursuant to either of such sections, then to file with the Trustee and the Commission, in accordance with the rules and regulations
prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports that may
be required pursuant to Section 13 of the Exchange Act, in respect of a security listed and registered on a national securities exchange
as may be prescribed from time to time in such rules and regulations; provided, however, the Company shall not be required to deliver
to the Trustee any materials for which the Company has sought and received confidential treatment by the Commission. The Company
also shall comply with the other provisions of Section 314(a) of the Trust Indenture Act. |
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(b) |
The
Company covenants and agrees to file with the Trustee and the Commission, in accordance with the rules and regulations prescribed
from to time by the Commission, such additional information, documents and reports with respect to compliance by the Company with
the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and regulations. |
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(c) |
The
Company covenants and agrees to transmit by mail, first class postage prepaid, or reputable over-night delivery service that provides
for evidence of receipt, to the Securityholders, as their names and addresses appear upon the Security Register, within 30 days after
the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company
pursuant to subsections (a) and (b) of this Section as may be required by rules and regulations prescribed from time to time by the
Commission. |
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SECTION
5.04 Reports by the Trustee.
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(a) |
The
Trustee shall transmit to holders as provided in Section 313 of the Trust Indenture Act such reports concerning the Trustee and its
actions under this Indenture as may be required by Section 313 of the Trust Indenture Act at the times and in the manner provided
by the Trust Indenture Act. |
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(b) |
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 stock exchange upon which any Securities are listed (if so listed) and, if required by Section 313 of the Trust Indenture Act,
also with the Commission. The Company agrees to notify the Trustee when any Securities become listed on any stock exchange. |
ARTICLE
VI
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: |
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(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 continuance of such default 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; |
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(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; |
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(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 not less than a majority in principal amount of the Securities
of that series at the time Outstanding; |
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(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 |
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(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 consecutive days. |
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(b) |
In
each and every such case, 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 a majority 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 (or,
if any Securities of that series are discount securities, that portion of the principal amount as may be specified in the terms of
that series pursuant to Section 2.01(a)(16)) of (and premium, if any, on) and accrued and unpaid interest, if any, 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. Notwithstanding the foregoing, the payment of such principal (or, if any Securities of that series are discount securities,
that portion of the principal amount as may be specified in the terms of that series pursuant to Section 2.01(a)(16)) of (and premium,
if any, on) and accrued and unpaid interest, if any, on the Securities of such series shall remain subordinated to the extent provided
in Article XIV. |
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(c) |
At
any time after the principal of the Securities of that series shall have been so declared due and payable, and before a 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 (or, by action at a meeting of holders
of the Securities of such series in accordance with Section 8.09, the holders of a majority in aggregate principal amount of the
Securities of such series then Outstanding represented at such meeting), 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 and (ii) any and all Events of Default under
this Indenture with respect to such series, other than the nonpayment of principal of (and premium, if any, on) and accrued and unpaid
interest, if any, on Securities of that series that shall have become due solely because of such acceleration, shall have been remedied,
cured 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. |
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(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.
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(a) |
The
Company covenants that (1) in case it shall default in the payment of any installment of interest on any of the Securities of a series,
or 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 Business Days, or (2) 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. |
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(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 out of the property of the Company or other obligor upon the Securities of that series,
wherever situated. |
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(c) |
In
case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial
proceedings affected 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 this 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. |
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(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 this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
Nothing
contained herein shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting the Securities of that series or the rights of any holder
thereof or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
SECTION
6.03 Application of Moneys Collected.
Any
moneys collected by the Trustee pursuant to this Article with respect to a particular series of Securities shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal (or premium,
if any) or interest, upon presentation of the Securities of that series, and notation thereon the payment, if only partially paid, and
upon surrender thereof if fully paid:
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FIRST: |
To
the payment of costs and expenses of collection and of all amounts payable to the Trustee under Section 7.06; |
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SECOND: |
To
the payment of all Senior Indebtedness of the Company if and to the extent required by Article XIV; and |
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THIRD: |
To
the payment of the amounts then due and unpaid upon Securities of such series for principal (and premium, if any) and interest, in
respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal (and premium, if any) and interest, respectively. |
SECTION
6.04 Limitation on Suits.
No
holder of any Security of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any
suit, action or proceeding in equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless (i) such holder previously shall have given to the Trustee written notice of an Event
of Default and of the continuance thereof with respect to the Securities of such series specifying such Event of Default, as hereinbefore
provided; (ii) the holders of not less than a majority in aggregate principal amount of the Securities of such series then Outstanding
shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as trustee hereunder; (iii)
such holder or holders shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby; and (iv) the Trustee for 60 days after its receipt of such notice, request and offer of
indemnity, shall have failed to institute any such action, suit or proceeding and (v) during such 60 day period, the holders of a majority
in principal amount of the Securities of that series (or such amount as shall have acted at a meeting of the holders of Securities of
such series pursuant to the provisions of this Indenture) do not give the Trustee a direction inconsistent with the request; provided,
however, that no one or more of such holders may use this Indenture to prejudice the rights of another holder or to obtain preference
or priority over another holder.
Notwithstanding
anything contained herein to the contrary, 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.
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(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. |
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(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 on 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 8.01, 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 be unduly prejudicial to the rights of holders of Securities
of any other series at the time Outstanding determined in accordance with Section 8.01. 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 would involve the Trustee in personal liability.
The
holders either (a) through the written consent of not less than a majority in aggregate principal amount of the Securities of any series
at the time Outstanding or (b) by action at a meeting of holders of the Securities of such series in accordance with Section 8.09, by
the holders of a majority in aggregate principal amount of the Securities of such series then Outstanding represented at such meeting,
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)) and except
in respect a provision hereof which, under Section 9.02, cannot be modified or amended without the consent of the holders of each Outstanding
Security affected; provided however that this Section shall not limit the right of holders of Securities of a series to rescind and annul
any acceleration as set forth in Section 6.01. 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. The provisions which otherwise would be automatically deemed to be contained in this Indenture pursuant to Section
316(a)(1) of the Trust Indenture Act are hereby expressly excluded from this Indenture, except to the extent such provisions are expressly
included herein.
SECTION
6.07 Undertaking to Pay Costs.
All
parties to this Indenture agree, and each holder of any Securities by such holder’s acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any
Securityholder, or group of Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities of any
series, or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of (or premium, if any) or
interest on any Security of such series, on or after the respective due dates expressed in such Security or established pursuant to this
Indenture.
ARTICLE
VII
CONCERNING
THE TRUSTEE
SECTION
7.01 Certain Duties and Responsibilities of Trustee.
(a) |
The
Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing of all Events
of Default with respect to the Securities of that series that may have occurred, shall undertake to perform with respect to the Securities
of such series such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants shall be
read into this Indenture against the Trustee. In case an Event of Default with respect to the Securities of a series has occurred
(that has not been cured or waived), the Trustee shall exercise with respect to Securities of that series such of the rights and
powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs. |
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(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: |
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(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: |
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(i) |
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 |
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(ii) |
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 requirement of this Indenture; |
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(2) |
the
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee, was negligent in ascertaining the pertinent facts; |
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(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; and |
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(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. |
SECTION
7.02 Certain Rights of Trustee.
Except
as otherwise provided in Section 7.01:
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(a) |
The
Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, security or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties; |
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(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 the President or any Vice President and by the Secretary or an Assistant Secretary or the Treasurer
or an Assistant Treasurer thereof (unless other evidence in respect thereof is specifically prescribed herein); |
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(c) |
The
Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted hereunder in good faith and in reliance thereon; |
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(d) |
The
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Securityholders, pursuant to the provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that may be incurred therein
or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default
with respect to a series of the Securities (that has not been cured or waived) to exercise with respect to Securities of that series
such of the rights and powers vested in it by this Indenture, and to use the same degree of care and skill in their exercise, as
a prudent man would exercise or use under the circumstances in the conduct of his own affairs; |
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(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; |
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(f) |
The
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, security, or other papers or documents, unless requested
in writing so to do by the holders of not less than a majority in principal amount of the Outstanding Securities of the particular
series affected thereby (determined as provided in Section 8.04); provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion
of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee
may require reasonable indemnity against such costs, expenses or liabilities as a condition to so proceeding. The reasonable expense
of every such examination shall be paid by the Company or, if paid by the Trustee, shall be repaid by the Company upon demand; and |
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(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. |
SECTION
7.03 Trustee Not Responsible for Recitals or Issuance of Securities.
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(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. |
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(b) |
The
Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. |
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(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.
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(a) |
The
Company covenants and agrees to pay to the Trustee, and the Trustee shall be entitled to, such reasonable compensation (which shall
not be limited by any provision of law in regard to the compensation of a trustee of an express trust), as the Company, and the Trustee
may from time to time agree in writing, for all services rendered by it in the execution of the trusts hereby created and in the
exercise and performance of any of the powers and duties hereunder of the Trustee, and, except as otherwise expressly provided herein,
the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses
and disbursements of its counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advance
as may arise from its negligence or bad faith. The Company also covenants to indemnify the Trustee (and its officers, agents, directors
and employees) for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on the
part of the Trustee and arising out of or in connection with the acceptance or administration of this trust, including the costs
and expenses of defending itself against any claim of liability in the premises. |
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(b) |
The
obligations of the Company under this Section to compensate and indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder. Such additional indebtedness shall be secured by a
lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust
for the benefit of the holders of particular Securities. |
SECTION
7.07 Reliance on Officers’ Certificate.
Except
as otherwise provided in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary
or desirable that a matter be proved or established prior to taking or suffering or omitting to take any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part
of the Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee and such
certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted to be taken by it under the provisions of this Indenture upon the faith thereof.
SECTION
7.08 Disqualification; Conflicting Interests.
If
the Trustee has or shall acquire any “conflicting interest” within the meaning of Section 310(b) of the Trust Indenture Act,
the Trustee and the Company shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
SECTION
7.09 Corporate Trustee Required; Eligibility.
There
shall at all times be a Trustee with respect to the Securities issued hereunder which shall at all times be a corporation organized and
doing business under the laws of the United States of America or any State or Territory thereof or of the District of Columbia, or a
corporation or other Person permitted to act as trustee by the Commission, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least 50 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 publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. The Company may not, nor may any Person directly or indirectly controlling, controlled by, or under
common control with the Company, serve as Trustee. In case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner and with the effect specified in Section 7.10.
SECTION
7.10 Resignation and Removal; Appointment of Successor.
(a) |
The
Trustee or any successor hereafter appointed, may at any time resign with respect to the Securities of one or more series by giving
written notice thereof to the Company and by transmitting notice of resignation by mail, first class postage prepaid, to the Securityholders
of such series, as their names and addresses appear upon the Security Register. Upon receiving such notice of resignation, the Company
shall promptly appoint a successor trustee with respect to Securities of such series by written instrument, in duplicate, executed
by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within 30 days after the mailing
of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor
trustee with respect to Securities of such series, or any Securityholder of that series who has been a bona fide holder of a Security
or Securities for at least six months may on behalf of himself and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, appoint
a successor trustee. |
(b) |
In
case at any time any one of the following shall occur: |
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(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 |
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(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 |
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(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, unless the Trustee’s duty to resign is stayed as provided herein, 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. |
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(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. |
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(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. |
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(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.
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(a) |
In
case of the appointment hereunder of a successor trustee with respect to all Securities, every such successor trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and such successor trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of
the Company or the successor trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor trustee all the rights, powers, and trusts of the retiring Trustee and shall duly assign, transfer
and deliver to such successor trustee all property and money held by such retiring Trustee hereunder. |
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(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 (1) shall contain such provisions
as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor trustee all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor
trustee relates, (2) shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same
trust, 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. |
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(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. |
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(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. |
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(e) |
Upon
acceptance of appointment by a successor trustee as provided in this Section, the Company shall transmit notice of the succession
of such trustee hereunder by mail, first class postage prepaid, to the Securityholders, as their names and addresses appear upon
the Security Register. 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 the corporate trust business
of the Trustee, 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.
ARTICLE
VIII
CONCERNING
THE SECURITYHOLDERS
SECTION
8.01 Evidence of Action by Securityholders.
Whenever
in this Indenture it is provided that the holders of a majority or specified percentage in aggregate principal amount of the Securities
of a particular series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver
or the taking of any other action), the fact that at the time of taking any such action the holders of such majority or specified percentage
of that series have joined therein may be evidenced by any instrument or any number of instruments of similar tenor executed by such
holders of Securities of that series in Person or by agent or proxy appointed in writing.
If
the Company shall solicit from the Securityholders of any series any request, demand, authorization, direction, notice, consent, waiver
or other action, the Company may, at its option, as evidenced by an Officers’ Certificate, fix in advance a record date for such
series for the determination of Securityholders entitled to give such request, demand, authorization, direction, notice, consent, waiver
or other action, but the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other action may be given before or after the record date, but only the Securityholders of record
at the close of business on the record date shall be deemed to be Securityholders for the purposes of determining whether Securityholders
of the requisite proportion of Outstanding Securities of that series have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for that purpose the Outstanding Securities of that series shall
be computed as of the record date; provided, however, that no such authorization, agreement or consent by such Securityholders on the
record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six
months after the record date.
SECTION
8.02 Proof of Execution by Securityholders.
Subject
to the provisions of Section 7.01, proof of the execution of any instrument by a Securityholder (such proof will not require notarization)
or his agent or proxy and proof of the holding by any Person of any of the Securities shall be sufficient if made in the following manner:
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(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. |
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(b) |
The
ownership of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security Registrar
thereof. |
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(c) |
The
Trustee may require such additional proof of any matter referred to in this Section as it shall deem necessary. |
SECTION
8.03 Who May be Deemed Owners.
Prior
to the due presentment for registration of transfer of any Security, the Company, the Trustee, any paying agent and any Security Registrar
may deem and treat the Person in whose name such Security shall be registered upon the books of the Company as the absolute owner of
such Security (whether or not such Security shall be overdue and notwithstanding any notice of ownership or writing thereon made by anyone
other than the Security Registrar) for the purpose of receiving payment of or on account of the principal of, 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 of 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.
SECTION
8.06 Purposes for Which Meetings May Be Called.
A
meeting of holders of any series of Securities may be called at any time and from time to time pursuant to this Article to make, give
or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made,
given or taken by holders of such series of Securities.
Notwithstanding
anything contained in this Article VIII, the Trustee may, during the pendency of a Default or an Event of Default, call a meeting of
holders of any series of Securities in accordance with its standard practices.
SECTION
8.07 Call Notice and Place of Meetings.
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(a) |
The
Trustee may at any time call a meeting of holders of any series of Securities for any purpose specified in Section 8.06 hereof, to
be held at such time and at such place in The City of New York or Boston, Massachusetts. Notice of every meeting of holders of any
series of Securities, setting forth the time and the place of such meeting, in general terms the action proposed to be taken at such
meeting and the percentage of the principal amount of the Outstanding Securities of such series which shall constitute a quorum at
such meeting, shall be given, in the manner provided in Section 13.04 hereof, not less than 21 nor more than 180 days prior to the
date fixed for the meeting to holders of Outstanding Securities of such series. |
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(b) |
In
case at any time the Company, pursuant to a Board Resolution, or the holders of at least 10% in principal amount of the Outstanding
Securities of any series shall have requested the Trustee to call a meeting of the holders of Securities of such series for any purpose
specified in Section 8.06 hereof, by written request setting forth in reasonable detail the action proposed to be taken at the meeting,
and the Trustee shall not have made the first publication of the notice of such meeting within 21 days after receipt of such request
or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the holders of Securities
of such series in the amount specified, as the case may be, may determine the time and the place in The City of New York or Boston,
Massachusetts for such meeting and may call such meeting for such purposes by giving notice thereof as provided in paragraph (a)
of this Section. |
SECTION
8.08 Persons Entitled To Vote at Meetings.
To
be entitled to vote at any meeting of holders of Securities of a given series, a Person shall be (a) a holder of one or more Outstanding
Securities of such series or (b) a Person appointed by an instrument in writing as proxy for a holder or holders of one or more Outstanding
Securities of such series by such holder or holders. The only Persons who shall be entitled to be present or to speak at any meeting
of holders shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel
and any representatives of the Company and its counsel.
SECTION
8.09 Quorum; Action.
The
Persons entitled to vote a majority in aggregate principal amount of the Outstanding Securities of a given series shall constitute a
quorum with respect to a meeting of holders of Outstanding Securities of such series. In the absence of a quorum within 30 minutes of
the time appointed for any such meeting, the meeting shall, if convened at the request of holders of Securities of such series, be dissolved.
In any other case, the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior
to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned
for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in Section 8.07(a) hereof, except that such notice need
be given only once and not less than five days prior to the date on which the meeting is scheduled to be reconvened.
At
a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid, any resolution and all matters (except
as limited by the proviso to the first paragraph of Section 9.02 hereof) shall be effectively passed and decided if passed or decided
by the Persons entitled to vote not less than a majority in aggregate principal amount of Outstanding Securities of a series represented
and voting at such meeting with respect to a meeting of holders of Outstanding Securities of such series.
Any
resolution passed or decisions taken at any meeting of holders of Securities duly held in accordance with this Section shall be binding
on all the holders of Securities of such series, whether or not present or represented at the meeting.
SECTION
8.10 Determination of Voting Rights; Conduct and Adjournment of Meetings.
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(a) |
Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting
of holders of Securities in regard to proof of the holding of Securities and of the appointment of proxies and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem appropriate. |
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(b) |
The
Trustee shall, by an instrument in writing, appoint a temporary chairman (which may be the Trustee) of the meeting, unless the meeting
shall have been called by the Company or by holders of Securities of a given series as provided in Section 8.07(b) hereof, in which
case the Company or the holders of Securities of such series calling the meeting, as the case may be, shall in like manner appoint
a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled
to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting. |
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(c) |
At
any meeting, each holder of a Security of the series in respect of which such meeting is being held or proxy shall be entitled to
one vote for each $1,000 principal amount of Securities of such series held or represented by him; provided, however, that no vote
shall be cast or counted at any meeting in respect of any Security of such series challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a holder of a Security
of such series or proxy. |
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(d) |
Any
meeting of holders of Securities duly called pursuant to Section 8.07 hereof at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of the series in respect of which
such meeting is being held represented at the meeting, and the meeting may be held as so adjourned without further notice. |
SECTION
8.11 Counting Votes and Recording Action of Meetings.
The
vote upon any resolution submitted to any meeting of holders of Securities of a given series shall be by written ballots on which shall
be subscribed the signatures of the holders of Securities of such series or of their representatives by proxy and the principal amounts
and serial numbers of the Outstanding Securities of such series held or represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file
with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of holders of Securities of such series shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits
by one or more Persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was
given as provided in Section 8.07 hereof and, if applicable, Section 8.09 hereof. Each copy shall be signed and verified by the affidavits
of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company and another to the Trustee
to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
ARTICLE
IX
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:
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(a) |
cure
any ambiguity, correct or supplement any provision herein which may be inconsistent with any other provision herein or which is otherwise
defective, or make any other provisions with respect to matters or questions arising under this Indenture which the Company and the
Trustee may deem necessary or desirable and which shall not be inconsistent with the provisions of this Indenture; |
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(b) |
to
comply with Article X; |
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(c) |
to
provide for uncertificated Securities in addition to or in place of certificated Securities; |
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(d) |
to
add to the covenants of the Company for the benefit of the holders of all or any Series of Securities (and if such covenants are
to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein conferred upon the Company; |
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(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; |
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(f) |
to
make any change that does not adversely affect the rights of any Securityholder in any material respect; |
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(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; or |
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(h) |
comply
with the requirements of the Commission in order to effect or maintain 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 written consent of the holders of at least a majority in aggregate principal amount of the Outstanding Securities of any series or
by action at a meeting of holders of the Securities of such series in accordance with Section 8.09, by the holders of a majority in aggregate
principal amount of the Securities of such series then Outstanding represented at such meeting, the Company, when authorized by Board
Resolutions, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as then in effect) for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner not covered
by Section 9.01 the rights of the holders of the Securities of such series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the holders of each Security then Outstanding and affected thereby, (i) extend the fixed maturity
of any Securities of any series, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any premium payable upon the redemption thereof, (ii) reduce the aforesaid percentage of Securities, the holders of
which are required to consent to any such supplemental indenture, or any consent or waiver, (iii) reduce the principal amount of discount
securities payable upon acceleration of the maturity of any Securities of any series or (iv) make the principal of or premium or interest
on any Security of a series payable in currency or currency units other than that stated in the Securities of such series.
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 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
of the Company, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated
by the Trustee and delivered in exchange for the Securities of that series then Outstanding.
SECTION
9.05 Execution of Supplemental Indentures.
Upon
the request of the Company, accompanied by its Board Resolutions authorizing the execution of any such supplemental indenture, and upon
the filing with the Trustee of evidence of the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall
join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be
obligated to enter into such supplemental indenture. The Trustee, subject to the provisions of Section 7.01, may receive an Opinion of
Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article is authorized or permitted by, and conforms
to, the terms of this Article and that it is proper for the Trustee under the provisions of this Article to join in the execution thereof;
provided, however, that such Opinion of Counsel need not be provided in connection with the execution of a supplemental indenture that
establishes the terms of a series of Securities pursuant to Section 2.01 hereof.
Promptly
after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, setting forth in general terms the substance of such supplemental indenture,
to the Securityholders of all series affected thereby as their names and addresses appear upon the Security Register. Any failure of
the Trustee to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental
indenture.
ARTICLE
X
SUCCESSOR
ENTITY
SECTION
10.01 Company May Consolidate, Etc.
Nothing
contained in this Indenture or in any of the Securities shall prevent any consolidation or merger of the Company with or into any other
Person (whether or not affiliated with the Company) or successive consolidations or mergers in which the Company or its successor or
successors shall be a party or parties, or shall prevent any sale, conveyance, transfer or other disposition of the property of the Company
or its successor or successors as an entirety, or substantially as an entirety, to any other corporation (whether or not affiliated with
the Company or its successor or successors) authorized to acquire and operate the same; provided, however, the Company hereby covenants
and agrees that, upon any such consolidation or merger (in each case, if the Company is not the survivor of such transaction), sale,
conveyance, transfer or other disposition, the due and punctual payment of the principal of (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) 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.
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(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 due and punctual
payment of the principal of, premium, if any, and interest on all of the Securities of all series Outstanding and the due and punctual
performance of all of the covenants and conditions of this Indenture or established with respect to each series of the Securities
pursuant to Section 2.01 to be performed by the Company with respect to each series, 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. |
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(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. |
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(c) |
Nothing
contained in this Article shall require any action by the Company in the case of a consolidation or merger of any Person into the
Company where the Company is the survivor of such transaction, or the acquisition by the Company, by purchase or otherwise, of all
or any part of the property of any other Person (whether or not affiliated with the Company). |
SECTION
10.03 Evidence of Consolidation, Etc. to Trustee.
The
Trustee, subject to the provisions of Section 7.01, may receive an Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale, conveyance, transfer or other disposition, and any such assumption, comply with the provisions of this Article.
ARTICLE
XI
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
(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 sufficient or a combination thereof, sufficient (assuming that no tax liability
will be imposed on the Trustee) in the opinion of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay at maturity or upon redemption all Securities of that series not theretofore delivered
to the Trustee for cancellation, including principal (and premium, if any) and interest due or to become due to such date of maturity
or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other sums payable hereunder
with respect to such series by the Company then this Indenture shall thereupon cease to be of further effect with respect to such series
except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that shall survive until the date of maturity or redemption
date, as the case may be, and Sections 7.06 and 11.05, that shall survive to such date and thereafter, and the Trustee, on demand of
the Company and at the cost and expense of the Company shall execute proper instruments acknowledging satisfaction of and discharging
this Indenture with respect to such series.
SECTION
11.02 Discharge of Obligations.
If
at any time all such Securities of a particular series not heretofore delivered to the Trustee for cancellation or that have not become
due and payable as described in Section 11.01 shall have been paid by the Company by depositing irrevocably with the Trustee as trust
funds moneys or an amount of Governmental Obligations sufficient to pay at maturity or upon redemption all such Securities of that series
not theretofore delivered to the Trustee for cancellation, including principal (and premium, if any) and interest due or to become due
to such date of maturity or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all
other sums payable hereunder by the Company with respect to such series, then after the date such moneys or Governmental Obligations,
as the case may be, are deposited with the Trustee the obligations of the Company under this Indenture with respect to such series shall
cease to be of further effect except for the provisions of Sections 2.03, 2.05, 2.07, 4,01, 4.02, 4.03, 7.06, 7.10 and 11.05 hereof that
shall survive until such Securities shall mature and be paid. Thereafter, Sections 7.06 and 11.05 shall survive.
SECTION
11.03 Deposited Moneys to be Held in Trust.
Subject
to Section 11.05, 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 or interest on the Securities of a particular series that are not applied but remain unclaimed by the holders
of such Securities for 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, shall be repaid to the Company or (if then held by the Company) shall be discharged from such
trust in each case, promptly after the end of any such two-year period or, at the request of the Company, on a later date specified by
the Company; 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 an unsecured
general creditor, look only to the Company for the payment thereof.
ARTICLE
XII
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
XIII
MISCELLANEOUS
PROVISIONS
SECTION
13.01 Effect on Successors and Assigns.
All
the covenants, stipulations, promises and agreements in this Indenture contained 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 or demand that by any provision of this Indenture is required or permitted to be given
or served by the Trustee or by the holders of Securities to or on the Company may be given or served by being deposited first class postage
prepaid in a post-office letterbox addressed (until another address is filed in writing by the Company with the Trustee), as follows:
Microbot Medical Inc., Attn: [ ], 25 Recreation Park Drive, Unit 108, Hingham, MA 02043. Any notice, election, request or demand by the
Company or any Securityholder 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. Any notice or communication to a holder shall be mailed by first-class
mail to his address shown on the Security Register kept by the Security Registrar. Failure to mail a notice or communication to a holder
or any defect in such notice or communication shall not affect its sufficiency with respect to other holders. If a notice or communication
is mailed or sent in the manner provided above within the time prescribed, it is duly given as of the date it is mailed, whether or not
the addressee receives it, except that notice to the Trustee or the Company shall only be effective upon receipt thereof by the Trustee
or the Company, respectively. If the Company mails a notice or communication to holders of Securities, it shall mail a copy to the Trustee
at the same time.
SECTION
13.05 Governing Law.
This
Indenture and each Security shall be deemed to be a contract made under the internal laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of said State.
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 Compliance Certificates and Opinions.
|
(a) |
Upon
any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company,
shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent have been complied with, except that in the case of any such application or demand as to which the furnishing
of such documents is specifically required by any provision of this Indenture relating to such particular application or demand,
no additional certificate or opinion need be furnished. |
|
|
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(b) |
Each
certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or
covenant in this Indenture shall include (1) a statement that the Person making such certificate or opinion has read such covenant
or condition; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (3) a statement that, in the opinion of such Person, he has made such examination
or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has
been complied with; and (4) a statement as to whether or not, in the opinion of such Person, such 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 as set forth in an Officers’ Certificate, or established
in one or more indentures supplemental to this Indenture, in any case where the date of maturity of interest or principal of any Security
or the date of redemption of any Security shall not be a Business Day, then payment of interest or principal (and premium, if any) may
be made on the next succeeding Business Day with the same force and effect as if made on the nominal date of maturity or redemption,
and no interest shall accrue for the period after such nominal date.
SECTION
13.09 Conflict with Trust Indenture Act.
If
and to the extent that any provision of this Indenture limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION
13.10 Counterparts.
This
Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute
but one and the same instrument.
SECTION
13.11 Separability.
In
case any one or more of the provisions contained in this Indenture or in the Securities of any series shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions
of this Indenture or of such Securities, but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
SECTION
13.12 Assignment.
The
Company will have the right at all times to assign any of its rights or obligations under this Indenture to a direct or indirect wholly-owned
Subsidiary of the Company, provided that, in the event of any such assignment, the Company, will remain liable for all such obligations.
Subject to the foregoing, this Indenture is binding upon and inures to the benefit of the parties thereto and their respective successors
and assigns. This Indenture may not otherwise be assigned by the parties thereto.
ARTICLE
XIV
SUBORDINATION OF SECURITIES
SECTION
14.01 Subordination Terms.
The
payment by the Company of the principal of, premium, if any, and interest on any series of Securities issued hereunder shall be subordinated
to the extent set forth in an indenture supplemental hereto relating to the Securities of such series.
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written.
|
MICROBOT
MEDICAL INC. |
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By: |
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Name: |
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Title: |
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[ ], |
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As Trustee |
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By: |
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Name: |
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Title: |
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Exhibit
5.1
Writer’s
Direct Dial: 516-663-6600
Writer’s
Direct Fax: 516-663-6601
November
17, 2023
Microbot
Medical Inc.
288
Grove Street, Suite 388
Braintree,
Massachusetts 02184
|
Re: |
Registration Statement on Form S-3 Filed by Microbot Medical
Inc. |
Ladies
and Gentlemen:
We
have acted as counsel to Microbot Medical Inc., a Delaware corporation (the “Company”), in connection with the Registration
Statement on Form S-3 (the “Registration Statement”) to be filed by the Company with the Securities and Exchange Commission
(the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”). Under the
Registration Statement, the Company may offer and sell from time to time, on a delayed or continuous basis pursuant to the provisions
of Rule 415 under the Securities Act as set forth in the prospectus contained in the Registration Statement (the “Base Prospectus”)
and as may be set forth in one or more supplements to the Base Prospectus (each, a “Prospectus Supplement”): (i) shares
of common stock of the Company, $0.01 par value per share (the “Common Stock”); (ii) shares of preferred stock of
the Company, in one or more series (the “Preferred Stock”); (iii) the Company’s debt securities, in one or more
series, consisting of notes, debentures, bonds and other evidences of indebtedness (the “Debt Securities”), which
Debt Securities may be senior Debt Securities (the “Senior Debt Securities”) and/or subordinated Debt Securities (the
“Subordinated Debt Securities”); (iv) warrants (the “Warrants”) to purchase Common Stock, Preferred
Stock and/or Debt Securities; (v) rights to purchase Common Stock, Preferred Stock and/or Debt Securities (the “Rights”);
(vi) units comprised of Common Stock, Debt Securities and/or Warrants to purchase shares of Common Stock, Preferred Stock and/or Debt
Securities in any combination of the foregoing (the “Units”); and (vii) any combination of the Common Stock, Preferred
Stock, Warrants, Debt Securities, Rights and/or the Units (collectively referred to as the “Securities” and sometimes
individually as a “Security”). The maximum public offering price of the Securities being registered is $75,000,000.
The Securities may be offered separately or as part of units with other Securities, in separate series, in amounts, at prices, and on
terms to be set forth in the Prospectus Supplements.
With
your permission, all assumptions herein have been made without any independent investigation or verification on our part except to the
extent otherwise expressly stated, and we express no opinion with respect to the accuracy of such assumptions or items relied upon.
In
rendering this opinion, we have: (i) investigated such questions of law, (ii) examined originals or certified, conformed or reproduction
copies of such agreements, instruments, documents and records of the Company, such certificates of public officials and such other documents,
and (iii) received such information from officers and representatives of the Company and others, in each case, as we have deemed necessary
or appropriate for purposes of this opinion.
In
all such investigations and examinations, we have assumed the legal capacity of all natural persons, the genuineness of all signatures,
the authenticity of original and certified documents and the conformity to original or certified documents of all copies submitted to
us as conformed or reproduction copies. We have assumed further that any Securities that are issued
and delivered, and the issuance thereof, will comply with all requirements and restrictions, if any, applicable to the Company, whether
imposed by any agreement or instrument to which the Company is a party or by which it is bound or any court or governmental or regulatory
body having jurisdiction over the Company or otherwise.
Microbot
Medical Inc.
November
17, 2023
Based
on the foregoing and subject to the limitations, qualifications and assumptions set forth herein, we are of the opinion that:
1.
The Common Stock (including any such shares of Common Stock comprising a Unit) will be duly authorized, validly issued, fully paid
and non-assessable when: (i) the Board of Directors (or a duly authorized committee thereof) has taken all necessary corporate
action to approve the issuance of the Common Stock in accordance with the Company’s certificate of incorporation, as amended
(the “Certificate of Incorporation”) and applicable law, which corporate action shall remain in full force and
effect, without amendment or modification, at all times at which such Common Stock is offered and sold by the Company; and (ii) (A)
the Common Stock is issued in uncertificated form and delivered in accordance with DWAC through the facilities of the Depository
Trust Company, or (B) the certificates representing the Common Stock shall have been duly executed, countersigned, registered and
duly delivered to the purchasers thereof, in each case against payment of the agreed consideration therefor in accordance with the
applicable underwriting, purchase or similar agreement or upon exchange in accordance with the terms of any other Security, or upon
exercise or conversion of any other Security in accordance with the terms thereof, that has been duly authorized, issued, paid for
and delivered.
2. Each
series of Preferred Stock (including any such Preferred Stock comprising a Unit) will be duly authorized, validly issued, fully paid
and non-assessable when: (i) the Board of Directors of the Company (or a duly authorized committee thereof) has taken all necessary corporate
action to approve the issuance of such Preferred Stock and to establish the terms and conditions thereof in accordance with the Certificate
of Incorporation and so as not to violate any applicable law, rule or regulation or result in a default under or breach of any agreement
or instrument binding upon the Company and so as to comply with any applicable requirement or restriction imposed by any court or governmental
body having jurisdiction over the Company, which corporate action shall remain in full force and effect, without amendment or modification,
at all times at which such Preferred Stock is offered and sold by the Company; (ii) the certificate of designations to the Certificate
of Incorporation establishing the designations, preferences and rights of the series of Preferred Stock being issued and delivered have
been duly filed with the Delaware Secretary of State; and (iii) (A) the Preferred Stock is issued in uncertificated form and delivered
in accordance with DWAC through the facilities of the Depository Trust Company, or (B) the certificates representing such series of Preferred
Stock shall have been duly executed, countersigned, registered and duly sold and delivered to the purchasers thereof, in each case against
payment of the agreed consideration thereof in accordance with the applicable underwriting, purchase or similar agreement or upon exchange
or conversion in accordance with the terms of any other Security, or upon exercise of any other Security in accordance with the terms
thereof, that has been duly authorized, issued, paid for and delivered.
3. Each
series of Debt Securities (including any such Debt Securities comprising a Unit) will constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with their terms, when (i) the Board of Directors of the Company (or a duly authorized
committee thereof) has taken all necessary corporate action to approve the issuance of such Debt Securities and to establish the terms
and conditions thereof in accordance with the indenture pursuant to which the Debt Securities are to be issued, which is substantially
in the form of the indenture filed as Exhibit 4.4 (with respect to Senior Debt Securities) or Exhibit 4.5 (with respect to Subordinate
Debt Securities) to the Registration Statement (in either case, as applicable, the “Indenture”), and so as not to
violate any applicable law, rule or regulation or result in a default under or breach of any agreement or instrument binding upon the
Company and so as to comply with any applicable requirement or restriction imposed by any court or governmental body having jurisdiction
over the Company, which corporate action shall remain in full force and effect, without amendment or modification, at all times at which
the Debt Securities of such series are offered and sold by the Company; (ii) the Indenture and any necessary supplemental indenture to
the Indenture (each, a “Supplemental Indenture”) shall have been duly authorized, executed and delivered by the Company
and the trustee to be named in the Prospectus Supplement relating to the offering of the Debt Securities (the “Trustee”);
(iii) the Trustee is eligible under the Trust Indenture Act of 1939, as amended, to act in such capacity under the Indenture and has
been duly appointed and a Statement of Eligibility of Trustee on Form T-1 has been filed in compliance with the Securities Act and the
rules and regulations promulgated thereunder; (iv) the Debt Securities of such series shall have been issued in the form and containing
the terms described in the Registration Statement, any applicable Prospectus Supplements, the Indenture, any applicable Supplemental
Indenture and the corporate action; and (v) the Debt Securities of such series shall have been duly authenticated, executed, sold and
delivered in accordance with the Indenture and any applicable Supplemental Indenture against payment of the agreed consideration therefor
in accordance with the applicable underwriting, purchase or similar agreement or upon exchange in accordance with the terms of any other
Security, or upon exercise of any other Security in accordance with the terms thereof, that has been duly authorized, issued, paid for
and delivered.
Microbot
Medical Inc.
November
17, 2023
4. Each
series of Warrants (including any Warrants comprising a Unit) will constitute the valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, when: (i) such Warrants shall have been duly authorized, executed and delivered by
the Company; (ii) the Board of Directors of the Company (or a duly authorized committee thereof) shall have taken all necessary corporate
action to approve the issuance of such Warrants and to establish the terms and conditions thereof in accordance with the Certificate
of Incorporation and so as not to violate any applicable law, rule or regulation or result in a default under or breach of any agreement
or instrument binding upon the Company and so as to comply with any applicable requirement or restriction imposed by any court or governmental
body having jurisdiction over the Company, which action shall remain in full force and effect, without amendment or modification, at
all times at which such Warrants are offered and sold by the Company; and (iii) such Warrants shall have been duly executed and authenticated
or countersigned as provided in the applicable warrant agreement relating thereto and duly sold and delivered to the purchasers thereof
against payment of the agreed consideration therefor in accordance with the applicable underwriting, purchase or similar agreement.
5. Each
series of Rights (including any Rights comprising a Unit) will constitute the valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, when: (i) such Rights shall have been duly authorized, executed and delivered by
the Company; (ii) the Board of Directors of the Company (or a duly authorized committee thereof) shall have taken all necessary corporate
action to approve the issuance of such Rights and to establish the terms and conditions thereof in accordance with the Certificate of
Incorporation and so as not to violate any applicable law, rule or regulation or result in a default under or breach of any agreement
or instrument binding upon the Company and so as to comply with any applicable requirement or restriction imposed by any court or governmental
body having jurisdiction over the Company, which action shall remain in full force and effect, without amendment or modification, at
all times at which such Rights are offered and sold by the Company; and (iii) such Rights shall have been duly executed and authenticated
or countersigned as provided in the applicable rights agreement relating thereto and duly sold and delivered to the purchasers thereof
against payment of the agreed consideration therefor in accordance with the applicable underwriting, purchase or similar agreement.
6. Each
series of Units will constitute the valid and binding obligations of the Company, enforceable against the Company in accordance with
their terms, when: (i) such Units shall have been duly authorized, executed and delivered by the Company; (ii) the Board of Directors
of the Company (or a duly authorized committee thereof) shall have taken all necessary corporate action to approve the issuance of such
Units and to establish the terms and conditions thereof in accordance with the Certificate of Incorporation and so as not to violate
any applicable law, rule or regulation or result in a default under or breach of any agreement or instrument binding upon the Company
and so as to comply with any applicable requirement or restriction imposed by any court or governmental body having jurisdiction over
the Company, which action shall remain in full force and effect, without amendment or modification, at all times at which such Rights
are offered and sold by the Company; and (iii) such Units shall have been duly executed and authenticated or countersigned as provided
in the applicable rights agreement relating thereto and duly sold and delivered to the purchasers thereof against payment of the agreed
consideration therefor in accordance with the applicable underwriting, purchase or similar agreement.
Microbot
Medical Inc.
November
17, 2023
The
foregoing opinions are limited to the applicable (i) federal law of the United States, (ii) the law of the State of New York and (iii)
the General Corporation Law of the State of Delaware, each as in effect on the date on which the Commission declares the Registration
Statement effective (the “Effective Date”), and no opinion is expressed with respect to such laws as subsequently
amended, or any other laws, or any effect that such amended or other laws may have on the opinions expressed herein. The foregoing opinions
are limited to matters stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated herein. The foregoing
opinions are given as of the Effective Date, and we undertake no obligation to advise you of any changes in applicable laws after the
Effective Date or of any facts that might change the opinions expressed herein that we may become aware of after the Effective Date.
Our opinions are also subject to the following exceptions, limitations and qualifications: (i) the effect of applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or similar laws relating to or affecting creditors’ rights and remedies; and (ii)
the effect of general principles of equity, whether raised in an action at law or in equity (including the possible unavailability of
specific performance or injunctive relief), concepts of materiality, reasonableness, good faith and fair dealing, and the discretion
of the court before which any proceeding therefor may be brought.
The
foregoing opinions assume that, at or prior to the time of delivery of any such Security: (i) the Registration Statement (and any post-effective
amendment thereof) shall have been declared effective and such effectiveness shall not have been terminated or rescinded; (ii) any necessary
Prospectus Supplement with respect to such Security shall have been timely filed with the Commission and any required exhibits shall
have been timely filed with the Commission in an amendment to the Registration Statement; (iii) the Indenture (and any Supplemental Indenture)
has been duly authorized, executed and delivered by the Trustee and is a valid and binding obligation of the Trustee; (iv) the Indenture
has become duly qualified under the Trust Indenture Act of 1939, as amended; (v) none of the terms of any Security to be established
subsequent to the date hereof, nor the issuance and delivery of such Security, nor the compliance by the Company with the terms of such
Security will violate any applicable law or will result in a violation of any provision of any instrument or agreement then binding upon
the Company or any restriction imposed by any court or governmental body having jurisdiction over the Company; and (vi) a sufficient
number of shares of Common Stock or Preferred Stock, as the case may be, will be authorized and available for issuance and the consideration
thereof will not be less than the par value of the shares of Common Stock or Preferred Stock, as the case may be.
Our
opinion is intended solely for the benefit of the Company, and may not be relied upon for any other purpose or by any other person or
entity without our prior written consent, except that we consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement
and to the reference to us under the heading “Legal Matters” in the Base Prospectus, and each related Prospectus Supplement.
In giving this consent, we do not admit that we are experts within the meaning of Section 11 of the Securities Act, or within the category
of persons whose consent is required under Section 7 of said Act.
|
Very
truly yours, |
|
|
|
/s/
Ruskin Moscou Faltischek, P.C. |
|
|
|
RUSKIN
MOSCOU FALTISCHEK, P.C. |
Exhibit 23.2
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated March 31, 2023 relating to the
financial statements of Microbot Medical Inc. appearing in the Annual Report on Form 10-K of Microbot Medical Inc. for the year ended
December 31, 2022. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/
Brightman Almagor Zohar & Co.
Brightman
Almagor Zohar & Co.
Certified
Public Accountants
A
Firm in the Deloitte Global Network
Tel
Aviv, Israel
November
17, 2023
Exhibit
107
Calculation
of Filing Fee Tables
Form
S-3
(Form
Type)
Microbot
Medical 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 | |
Equity | |
Common Stock, $0.01 par value per share | |
Rule 457(o) | |
| (1 | ) | |
| (2 | ) | |
| (3 | ) | |
| | | |
| | |
Equity | |
Preferred Stock, $0.01 par value per share | |
Rule 457(o) | |
| (1 | ) | |
| (2 | ) | |
| (3 | ) | |
| | | |
| | |
Other | |
Warrants | |
Rule 457(o) | |
| (1 | ) | |
| (2 | ) | |
| (3 | ) | |
| | | |
| | |
Debt | |
Debt Securities | |
Rule 457(o) | |
| (1 | ) | |
| (2 | ) | |
| (3 | ) | |
| | | |
| | |
Other | |
Rights | |
Rule 457(o) | |
| (1 | ) | |
| (2 | ) | |
| (3 | ) | |
| | | |
| | |
Other | |
Units | |
Rule 457(o) | |
| (1 | ) | |
| (2 | ) | |
| (3 | ) | |
| | | |
| | |
Unallocated (Universal) Shelf | |
| |
Rule 457(o) | |
| (1 | ) | |
| (2 | ) | |
$ | 75,000,000 | | |
| 0.00014760 | | |
$ | 11,070 | |
Total Offering Amounts | | |
| | | |
$ | 75,000,000 | | |
| | | |
| 11,070 | |
Total Fee Offsets | | |
| | | |
| | | |
| | | |
$ | 0.00 | |
Net Fee Due | | |
| | | |
| | | |
| | | |
$ | 11,070 | |
(1) | Calculated
pursuant to Rule 457(o) under the Securities Act of 1933, as amended, based on the proposed
maximum aggregate offering price. |
| |
(2) | There
are being registered hereunder such indeterminate number of shares of common stock and preferred
stock, such indeterminate principal amount of debt securities, such indeterminate number
of warrants and rights to purchase common stock, preferred stock or debt securities, and
such indeterminate number of units, as shall have an aggregate initial offering price not
to exceed $75,000,000. If any debt securities are issued at an original issue discount, then
the offering price of such debt securities shall be in such greater principal amount as shall
result in an aggregate initial offering price not to exceed $75,000,000, less the aggregate
dollar amount of all securities previously issued hereunder. Any securities registered hereunder
may be sold separately or as units with other securities registered hereunder. The proposed
maximum initial offering price per unit will be determined, from time to time, by the registrant
in connection with the issuance by the registrant of the securities registered hereunder.
The securities registered also include such indeterminate number of shares of common stock
and preferred stock and amount of debt securities as may be issued upon conversion of or
exchange for preferred stock or debt securities that provide for conversion or exchange,
upon exercise of warrants or rights 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 shares being registered hereunder include such indeterminate number of shares of common
stock and preferred stock as may be issuable with respect to the shares being registered
hereunder as a result of stock splits, stock dividends or similar transactions. |
| |
(3) | The
proposed maximum aggregate offering price per class of security will be determined from time
to time by the registrant in connection with the issuance by the registrant of the securities
registered hereunder and is not specified as to each class of security pursuant to General
Instruction II.D. of Form S-3 under the Securities Act of 1933, as amended. |
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