As
filed with the Securities and Exchange Commission on September 29, 2023
Registration
No. 333-
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT UNDER
THE SECURITIES ACT OF 1933
NuZee,
Inc.
(Exact
name of registrant as specified in its charter)
Nevada |
|
38-3849791 |
(State
or other jurisdiction of
incorporation
or organization) |
|
(I.R.S.
Employer
Identification
No.) |
1350
East Arapaho Road, Suite 230
Richardson,
Texas 75081
(760)
295-2408
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Masateru
Higashida
Chief
Executive Officer
NuZee,
Inc.
1350
East Arapaho Road, Suite 230
Richardson,
Texas 75081
(760)
295-2408
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copy
to:
Alan
A. Lanis, Jr.
Baker
& Hostetler LLP
11601 Wilshire Boulevard, Suite 1400
Los Angeles, California 90025-0509
(310) 442-8850
From
time to time after the effective date of this Registration Statement.
(Approximate date of commencement of proposed sale to the public)
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, 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 registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large
accelerated filer ☐ |
|
Accelerated
filer ☐ |
|
Non-accelerated
filer ☒ |
|
Smaller
reporting company ☒ |
|
|
|
Emerging
growth company ☐ |
|
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The
registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933 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 or sell these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED SEPTEMBER 29, 2023
PROSPECTUS
NuZee,
Inc.
$100,000,000
Common
Stock
Debt
Securities
Warrants
Units
Rights
We
may offer and sell, from time to time, in one or more offerings, together or separately, our common stock, debt securities, warrants
or any combination of the foregoing, either individually or as units composed of one or more of the other securities. We may also issue
rights to purchase the securities offered in this prospectus. This prospectus provides you with a general description of the securities.
The aggregate public offering price of all securities issued by us under this prospectus may not exceed $100,000,000.
Each
time we offer and sell securities, we will provide a supplement to this prospectus that contains specific information about the offering
and the amounts, prices and terms of the securities. The supplement may also add, update or change information contained in this prospectus
with respect to that offering. You should carefully read this prospectus and the applicable prospectus supplement before you invest in
any of our securities.
We
may offer and sell the securities described in this prospectus and any prospectus supplement to or through one or more underwriters,
dealers and agents, or directly to purchasers, or through a combination of these methods. If any underwriters, dealers or agents are
involved in the sale of any of the securities, their names and any applicable purchase price, fee, commission or discount arrangement
between or among them will be set forth, or will be calculable from the information set forth, in the applicable prospectus supplement.
See the sections of this prospectus titled “About this Prospectus” and “Plan of Distribution” for more information.
No securities may be sold without delivery of this prospectus and the applicable prospectus supplement describing the method and terms
of the offering of such securities.
Our
common stock is listed on the Nasdaq Capital Market under the symbol “NUZE.” On September 28, 2023, the closing sale price
of our common stock on the Nasdaq Capital Market was $7.20 per share.
Investing
in our securities involves significant risks. See “Risk Factors” on page 5 of this prospectus, in our most recent Annual
Report on Form 10-K and in any applicable prospectus supplement. You should read this prospectus, any accompanying prospectus supplement
and the documents incorporated by reference herein and therein carefully before you make your investment decision.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed
upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
This
prospectus is dated , 2023.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the U.S. Securities and Exchange Commission, or the SEC, using a “shelf”
registration process. Under this shelf registration statement, we may offer or sell any combination of the securities described in this
prospectus, from time to time, and in one or more offerings, up to a total dollar amount of $100,000,000 as described in this prospectus.
Each time that we offer and sell securities, we will provide a prospectus supplement to this prospectus that contains specific information
about the securities being offered and sold and the specific terms of that offering. We may also authorize one or more free writing prospectuses
to be provided to you that may contain material information relating to these offerings. The prospectus supplement may also add, update
or change information contained in this prospectus with respect to that offering. If there is any inconsistency between the information
in this prospectus and the applicable prospectus supplement, you must rely on the information in the prospectus supplement. Before purchasing
any securities, you should carefully read both this prospectus and the applicable prospectus supplement, together with the additional
information described under the headings “Where You Can Find More Information” and “Incorporation of Certain Information
by Reference.”
We
have not authorized anyone to provide you with any information or to make any representations other than those contained in this prospectus,
any applicable prospectus supplement or any free writing prospectuses prepared by or on behalf of us or to which we have referred you.
We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you.
We will not make an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should assume that
the information appearing in this prospectus and the applicable prospectus supplement to this prospectus is accurate as of the date on
the respective covers of such documents, and that any information incorporated by reference is accurate only as of the date of the document
incorporated by reference, regardless of the time of delivery of this prospectus, such prospectus supplement, or any sale or issuance
of a security, unless we indicate otherwise. Our business, financial condition, results of operations and prospects may have changed
materially since those dates. You should rely only on the information contained or incorporated by reference in this prospectus or any
accompanying prospectus supplement.
When
we refer to “NuZee,” “we,” “our,” “us” and the “Company” in this prospectus,
we mean NuZee, Inc. and its subsidiaries on a consolidated basis, unless otherwise specified. References to “you” refer to
a prospective investor.
This
prospectus and any accompanying prospectus supplement may include trademarks, service marks and trade names owned by us or other companies.
All trademarks, service marks and trade names included in this prospectus are the property of their respective owners.
WHERE
YOU CAN FIND MORE INFORMATION
We
file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available over the
Internet at the SEC’s website at www.sec.gov. The SEC maintains a website that contains reports, proxy and information statements
and other information regarding issuers that file electronically with the SEC at http://www.sec.gov.
Our
website address is www.mynuzee.com. The information contained on, or that can be accessed through, our website is not a part of
this prospectus or incorporated by reference into this prospectus or any prospectus supplement, and you should not consider information
on our website to be part of this prospectus or any accompanying prospectus supplement. We have included our website address as an inactive
textual reference only.
This
prospectus and any prospectus supplement are part of a registration statement that we filed with the SEC and do not contain all of the
information in the registration statement. The full registration statement may be obtained from the SEC or us, as provided below. Forms
of the documents establishing the terms of the offered securities are or may be filed as exhibits to the registration statement. Statements
in this prospectus or any prospectus supplement about these documents are summaries and each statement is qualified in all respects by
reference to the document to which it refers. You should refer to the actual documents for a more complete description of the relevant
matters. You may obtain the registration statement and exhibits to the registration statement from the SEC’s website, as provided
above.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC’s rules allow us to “incorporate by reference” information into this prospectus, which means that we can disclose
important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference
is deemed to be part of this prospectus, and subsequent information that we file with the SEC will automatically update and supersede
previously filed information as applicable. Any statement contained in a previously filed document incorporated by reference will be
deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus modifies
or replaces that statement. Since information that we later file with the SEC will update and supersede previously incorporated information,
you should look at all of the SEC filings that we incorporate by reference to determine if any of the statements in this prospectus or
any accompanying prospectus supplement or in any documents previously incorporated by reference have been modified or superseded.
We
incorporate by reference into this prospectus our documents listed below and any future filings made by us with the SEC under Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, between the date of this prospectus
and the termination of the offering of the securities described in this prospectus (in each case, other than information deemed furnished
and not filed in accordance with SEC rules, including pursuant to Items 2.02 and 7.01 of Form 8-K or corresponding information furnished
under Item 9.01 or included in a furnished exhibit, except as stated specifically below):
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our Annual Report on Form 10-K for the fiscal year ended September 30, 2022, filed on Form 10-K with the SEC on December 23, 2022; |
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our definitive proxy statement on Schedule 14A relating to our annual meeting of stockholders, filed on January 30, 2023, with respect to those portions incorporated by reference into our Annual Report on Form 10-K for the fiscal year ended September 30, 2022; |
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our Quarterly Report on Form 10-Q for the fiscal quarter ended December 31, 2022, filed with the SEC on February 13, 2023; |
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our Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2023, filed with the SEC on May 15, 2023; |
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our Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2023, filed with the SEC on August 11, 2023; |
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our Current Reports on Form 8-K, filed with the SEC on November 4, 2022; December 12, 2022; December 14, 2022; December 28, 2022; January 20, 2023; March 21, 2023; August 15, 2023 and September 6, 2023; and |
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the description of our common stock contained in the Registration Statement on Form 8-A filed with the SEC on June 17, 2020, including any amendments or reports filed for the purpose of updating such description. |
We
also incorporate by reference into this prospectus all reports and other documents we may file pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of this prospectus until the offering of the particular securities covered by a prospectus
supplement has been terminated or completed, other than any portion of the respective filings that are furnished, rather than filed,
under the applicable SEC rules. In addition, all reports and other documents we may file pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act after the date of the initial registration statement of which this prospectus forms a part, and prior to effectiveness
of such registration statement, shall be deemed to be incorporated by reference into this prospectus.
You
may request a free copy of these filings (other than an exhibit to a filing unless that exhibit is specifically incorporated by reference
into that filing) by writing or telephoning us as follows:
NuZee,
Inc.
1350
East Arapaho Road, Suite 230
Richardson,
Texas 75081
(760)
295-2408
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus, any prospectus supplement and the information incorporated by reference herein and therein contain forward-looking statements
concerning our business, operations and financial performance and condition, as well as our plans, objectives and expectations for our
business operations and financial performance and condition, which are based on management’s beliefs and assumptions and on information
currently available to management. In some cases, you can identify these statements by terms such as “anticipate,” “believe,”
“could,” “estimate,” “expects,” “intend,” “may,” “plan,” “potential,”
“predict,” “project,” “should,” “will,” “would” or the negative of these
terms or other comparable expressions that convey uncertainty of future events or outcomes, although not all forward-looking statements
contain these terms.
These
statements involve risks, uncertainties and other factors that may cause actual results, levels of activity, performance or achievements
to be materially different from the information expressed or implied by these forward-looking statements. Forward-looking statements
in this prospectus supplement and the accompanying prospectus include, but are not limited to, statements regarding:
| ● | our
plans to obtain funding for our operations, including funding necessary to develop, manufacture
and commercialize our products, provide our co-packing services, and to continue as a going
concern; |
| ● | our
expectation that our existing capital resources will be sufficient to fund our operations
for the next three months and our expectation to need additional capital to fund our planned
operations beyond that; |
| ● | the
accuracy of our estimates regarding expenses, future revenue, capital requirements and needs
for additional financing; |
| ● | our
expectations regarding our ability to maintain compliance with the listing requirements of
the Nasdaq Capital Market; |
| ● | the
impact to our business, including any supply chain interruptions, resulting from changes
in general economic, business and political conditions, including changes in the financial
markets and macroeconomic conditions resulting from a pandemic such as COVID-19 or otherwise; |
| ● | the
evolving coffee preferences of coffee consumers in North America and East Asia; |
| ● | the
size and growth of the markets for our products and co-packing services; |
| ● | our
ability to compete with companies producing similar products or providing similar co-packing
services; |
| ● | our
ability to successfully achieve the anticipated results of strategic transactions; |
| ● | our
expectation regarding our future co-packing revenues; |
| ● | our
ability to develop or offer innovative new products and services, and expand our co-packing
services to other products that are complementary to our current single serve coffee product
offerings; |
| ● | our
expectations regarding additional manufacturing, coffee roasting and co-packing capabilities
to be provided through our manufacturing partner, as well as our manufacturing partner’s
ability to successfully facilitate distribution efforts to the Eastern United States; |
| ● | our
reliance on third-party roasters or manufacturing partners to roast coffee beans necessary
to manufacture our products and to fulfill every aspect of our co-packing services; |
| ● | regulatory
developments in the U.S. and in non-U.S. countries; |
| ● | our
ability to retain key management, sales and marketing personnel; |
| ● | the
scope of protection we are able to establish and maintain for intellectual property rights
covering our products and technology; |
| ● | our
ability to develop and maintain our corporate infrastructure, including our internal control
over financial reporting; |
| ● | the
outcome of pending, threatened or future litigation; |
| ● | our
financial performance; and |
| ● | our
use of the net proceeds from this offering. |
In
addition, you should refer to the “Risk Factors” section of this prospectus, any prospectus supplement and the information
incorporated by reference herein and therein for a discussion of other important factors that may cause actual results to differ materially
from those expressed or implied by the forward-looking statements. As a result of these factors, we cannot assure you that the forward-looking
statements in this prospectus and any prospectus supplement will prove to be accurate. Furthermore, if the forward-looking statements
prove to be inaccurate, the inaccuracy may be material. In light of the significant uncertainties in these forward-looking statements,
you should not regard these statements as a representation or warranty by us or any other person that we will achieve our objectives
and plans in any specified time frame, or at all. We undertake no obligation to publicly update any forward-looking statements, whether
as a result of new information, future events or otherwise, except as required by law.
You
should read this prospectus, any prospectus supplement and the information incorporated by reference herein and therein completely and
with the understanding that our actual results may differ materially from what we expect as expressed or implied by our forward-looking
statements. In light of the significant risks and uncertainties to which our forward-looking statements are subject, you should not place
undue reliance on or regard these statements as a representation or warranty by us or any other person that we will achieve our objectives
and plans in any specified timeframe, or at all. We discuss many of these risks in greater detail in the documents incorporated by reference
herein and therein, including under the heading “Risk Factors.” Any forward-looking statement made by us in this prospectus,
any prospectus supplement and the information incorporated by reference herein and therein speaks only as of the date on which we make
it. These forward-looking statements represent our estimates and assumptions only as of the dates of this prospectus, any prospectus
supplement and the information incorporated by reference herein and therein, regardless of the time of delivery of this prospectus and
any prospectus supplement or any sale of our securities.
THE
COMPANY
We
are a specialty coffee and technologies company and, we believe, a leading co-packer of single serve pour over coffee in the United States,
as well as a preeminent co-packer of coffee brew bags, which is also referred to as tea-bag style coffee. In addition to our single serve
pour over and coffee brew bag coffee products, we have expanded our product portfolio to offer a third type of single serve coffee format,
DRIPKIT pour over products, as a result of our acquisition of substantially all of the assets of Dripkit, Inc. (“Dripkit”).
Our DRIPKIT pour over format features a large-size single serve pour over pack that sits on top of the cup and delivers in our view a
barista-quality coffee experience to customers in the United States, Canada, and Mexico. Our mission is to leverage our position as a
co-packer at the forefront of the North American single serve coffee market to revolutionize the way single serve coffee is enjoyed in
the United States. Recently, we expanded our product offerings to include bagged coffees for existing single serve customers as well
as a new licensing relationship with Stone Brewing which will include both bagged and single serve format. We believe this expansion
will allow us to increase manufacturing efficiency and better serve our customers and the market. While the United States is our core
market, we also have manufacturing and sales operations in Korea and a joint venture in Latin America.
We
believe we are the only commercial-scale producer within the North American market that has the dual capacity to pack both single serve
pour over coffee and coffee brew bag coffee. We intend to leverage our position to become the commercial coffee producer of choice and
aim to become the preeminent leader for coffee companies seeking to enter into and grow within the single serve coffee market in North
America. With our single serve pour over and brew bag coffee, we are paid per-package based on the number of single serve coffee products
produced by us. With our bagged coffee products, we will be paid based on the number of completed bags delivered. Accordingly, we consider
a portion of our business model to be a form of tolling arrangement, as we receive a fee for almost every single serve coffee product
our co-packing customers sell in the North American and Korean markets. Under the single serve model, our risk related to owning and
managing inventory is limited. With our bagged coffees and the Stone Brewing licensing relationship, we will manage the production and
related inventory which will involve increased risk levels.
We
have also developed and sell NuZee branded single serve coffee products, including our flagship Coffee Blenders line of both single serve
pour over coffee and coffee brew bag coffee products, which we believe offers consumers some of the best coffee available in a single
serve application in the world. We have recently expanded our Coffee Blenders offerings to include a new Cold pressed latte product line
that is available to purchase in Korea and online. We offer DRIPKIT pour over packs direct to consumers through our website, wholesale
business-to-business to hospitality customers, and co-pack for coffee roasters.
We
may also consider co-packaging other products that are complementary to our current product offerings and provide us with a deeper access
to our customers. In addition, we are continually exploring potential strategic partnerships, co-ventures, and mergers, acquisitions,
or other transactions with existing and future business partners to generate additional business, drive growth, reduce manufacturing
costs, expand our product portfolio, enter into new markets, and further penetrate the markets in which we currently operate. Our goal
is to continue to expand our product portfolio to raise our visibility, consumer awareness and brand profile.
We
were incorporated in 2011 in Nevada as Havana Furnishings, Inc. NuZee Co. Ltd. was incorporated in 2011. NuZee Co. Ltd. merged into Havana
Furnishings, Inc. in 2013, at which time we changed our name to NuZee, Inc. Our principal executive offices are located at 1350 East
Arapaho Road, Suite #230, Richardson, Texas 75081, and our telephone number is (760) 295-2408. We also maintain an office in Vista, California.
Our
corporate website is www.mynuzee.com. Information contained on, or that can be accessed through, our website is not a part of this prospectus
or incorporated by reference into this prospectus, and you should not consider information on our website to be part of this prospectus
or any accompanying prospectus supplement.
RISK
FACTORS
Investing
in our securities involves a high degree of risk. Prior to making a decision about investing in our securities, you should carefully
consider the specific factors discussed under “Risk Factors” in our most recent Annual Report on Form 10-K and in any subsequently
filed Quarterly Report on Form 10-Q, together with the risk factors contained in our other SEC filings that we incorporate by reference
into this prospectus or that may be included in any applicable prospectus supplement. The risks and uncertainties we have described are
not the only ones facing our company. Additional risks and uncertainties not presently known to us or that we currently deem immaterial
may also affect our business operations. The occurrence of any of these known or unknown risks might cause you to lose all or part of
your investment in the offered securities.
USE
OF PROCEEDS
Unless
otherwise indicated in the applicable prospectus supplement, we intend to use the net proceeds from sales of the securities described
in this prospectus to acquire complementary businesses, acquire or license products or technologies that are complementary to our own,
or for strategic investment purposes although we have no current plans, commitments or agreements with respect to any such use of proceeds
for acquisitions, licenses or strategic investments as of the date of this prospectus, and for working capital and general corporate
purposes.
Our
management will have broad discretion to allocate the net proceeds to us from sales of the securities described in this prospectus and
investors will be relying on the judgment of our management regarding the application of the proceeds from sales of the securities described
in this prospectus. We reserve the right to change the use of these proceeds as a result of certain contingencies such as competitive
developments, the results of our marketing efforts, and other factors. An investor will not have the opportunity to evaluate the economic,
financial or other information on which we base our decisions on how to use the proceeds.
Pending
use of the proceeds as described above, we intend to invest the proceeds in variety of capital preservation investments, including short-term,
interest-bearing instruments.
DESCRIPTION
OF COMMON STOCK
This
section describes the general terms and provisions of our common stock. The prospectus supplement relating to any offering of common
stock, or other securities convertible into or exchangeable or exercisable for common stock, will describe more specific terms of the
offering of common stock or other securities, including the number of shares offered, the initial offering price and market price and
dividend information. The prospectus supplement may provide information that is different from this prospectus. If the information in
the prospectus supplement with respect to our common stock being offered differs from this prospectus, you should rely on the information
in the prospectus supplement.
The
summary set forth below does not purport to be complete and is subject to and qualified in its entirety by reference to our articles
of incorporation, as amended, and our third amended and restated bylaws, each of which is incorporated by reference as an exhibit to
the registration statement of which this prospectus forms a part. We encourage you to read our articles of incorporation, as amended,
and our third amended and restated bylaws for additional information before you purchase any shares of our common stock. Our common stock
and the rights of the holders of our common stock are subject to the applicable statutes of the State of Nevada, our articles of incorporation,
as amended, our third amended and restated bylaws.
Authorized
Capital Stock
The
authorized capital stock of the Company consists of 200,000,000 shares, par value $0.00001 per share. As of September 28, 2023, 782,739
shares of our common stock were outstanding and were held of record by approximately 632 stockholders.
Voting
Rights
Each
outstanding share of common stock entitles the holder thereof to one non-cumulative vote per share on all matters on which stockholders
may vote. Holders of shares of common stock do not have cumulative voting rights with respect to the election of directors or any other
matter.
Cumulative
voting allows a minority stockholder to vote a portion or all of its shares for one or more candidates for seats on the Company’s
Board. Without cumulative voting, a minority stockholder will not be able to gain as many seats on the Board based on the number of shares
of our stock the stockholder holds as compared to the number of seats the stockholder would be able to gain if cumulative voting were
permitted. The absence of cumulative voting makes it more difficult for a minority stockholder to gain a seat on the Board to influence
the Board’s decision regarding a takeover.
Dividends
The
holders of common stock have equal ratable rights to dividends from funds legally available therefor when, as and if declared by the
Board. The Company has not paid any cash dividends to stockholders. The declaration of any future cash dividend will be at the discretion
of the Board and will depend upon the Company’s earnings, if any, the Company’s capital requirements and financial position,
the Company’s general economic conditions and other pertinent conditions. It is the Company’s present intention not to pay
any cash dividends in the foreseeable future, but rather to reinvest earnings, if any, in the Company’s business operations.
No
Preemptive or Similar Rights
The
holders of common stock have no preemptive or other subscription or conversion rights. In addition, the shares of common stock are not
subject to redemption by operation of a sinking fund or otherwise. All outstanding shares of common stock are fully paid and nonassessable.
Liquidation
Rights
In
the event of the Company’s liquidation, dissolution or winding up of the Company, the holders of common stock will be entitled
to share ratably in all of the Company’s assets that are available for distribution after payment in full of all of the Company’s
liabilities.
Certain
Bylaws Provisions
The
Bylaws contain certain provisions that may have the effect of delaying, deferring or discouraging another party from acquiring control
of the Company. These provisions, which are summarized below, are intended to discourage coercive takeover practices and inadequate takeover
bids. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with the Board.
Term
of Directors. The Bylaws provide that each director shall hold office until the next annual meeting of shareholders and until a successor
is duly elected and qualified or until the director’s earlier death, resignation, retirement, disqualification or removal.
Number
of Directors. The Bylaws provide that the Board shall consist of not less than one and not more than 13 members.
Vacancies
on the Board. The Bylaws provide that vacancies on the Board, including newly created directorships, may be filled only by a majority
vote of directors then in office, and directors so chosen shall hold office for a term expiring at the next annual meeting of stockholders
or until such director’s successor shall have been duly elected and qualified, unless sooner displaced. Accordingly, the Board
could prevent any stockholder from filling any new directorships with such stockholder’s own nominee.
Stockholder
Meetings. The Bylaws provide that a special meeting of stockholders may be called only by the holders of twenty-five percent (25%)
of the voting shares of the Company, or by the Company’s president, or by the Board or a majority thereof.
Stockholder
Action by Written Consent. The Bylaws provide that any action that may be taken at any annual or special meeting of the stockholders
may be taken without a meeting if, before or after the action, a written consent thereto is signed by stockholders holding at least a
majority of the voting power, except that if any greater proportion of voting power is required for such action at a meeting, then such
greater proportion of written consents is required.
Advance
Notice of Stockholder Proposals. The Bylaws establish advance notice procedures with respect to stockholder proposals and the nomination
of candidates for election as directors. The procedures permit stockholders to submit proposals (including director nominations) at any
annual meeting of stockholders if advance notice thereof has been timely delivered to, or mailed and received by, the secretary of the
Company not less than 90 nor more than 120 days prior to the anniversary date of the immediately preceding annual meeting of stockholders.
However, if the annual meeting of stockholders is changed by more than 30 calendar days before or after such anniversary date, different
timing provisions will apply as set forth in the Bylaws. These provisions do not apply to stockholder proposals made pursuant to Rule
14a-8 under the Securities Exchange Act of 1934, as amended. These provisions might preclude our stockholders from bringing matters before
our annual meeting of stockholders or from making nominations for directors at our annual meeting of stockholders if the proper procedures
are not followed.
Anti-Takeover
Effects of Nevada Law
In
addition to the Bylaws provisions described above, the State of Nevada, where we are incorporated, has enacted statutes that could also
prohibit or delay mergers or other takeover or change in control attempts and, accordingly, may discourage attempts to acquire us even
though such a transaction may offer our stockholders the opportunity to sell their stock at a price above the prevailing market price.
We have not opted out of these statutes.
Listing
Our
common stock is listed on the Nasdaq Capital Market under the symbol “NUZE.”
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is V Stock Transfer, LLC. Its address is 18 Lafayette Place, Woodmere, New York 11598.
DESCRIPTION
OF DEBT SECURITIES
We
may offer debt securities from time to time, as either senior or subordinated debt or as senior or subordinated convertible debt, in
one or more offerings under this prospectus. We will issue any such debt securities under one or more separate indentures that we will
enter into with a trustee to be named in the indenture and specified in the applicable prospectus supplement. The specific terms of debt
securities being offered will be described in the applicable prospectus supplement. We have filed a form of indenture as an exhibit to
the registration statement of which this prospectus forms a part.
The
prospectus supplement relating to a particular issue of debt securities will describe the terms of those debt securities and the related
indenture, which may include (without limitation) the following:
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the
title or designation of the debt securities; |
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any
limit upon the aggregate principal amount of the debt securities; |
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the
price or prices at which the debt securities will be issued; |
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the
maturity date or dates, or the method of determining the maturity date or dates, of the debt securities; |
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the
date or dates on which we will pay the principal on the debt securities; |
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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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the
manner in which the amounts of payment of principal of, premium or interest on the debt securities will be determined, if these amounts
may be determined by reference to an index based on a currency or currencies other than that in which the debt securities are denominated
or designated to be payable or by reference to a commodity, commodity index, stock exchange index or financial index; |
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any
conversion or exchange features; |
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if
payments of principal of, premium or interest on the debt securities will be made in one or more currencies or currency units other
than that or those in which the debt securities are denominated, the manner in which the exchange rate with respect to these payments
will be determined; |
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the
place or places where the principal of, premium and interest on the debt securities will be payable, where the debt securities may
be surrendered for transfer or exchange and where notices or demands to or upon the Company may be served; |
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the
terms and conditions upon which we may redeem the debt securities; |
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any
obligation we have to redeem or purchase the debt securities pursuant to any sinking fund or analogous provisions or at the option
of a holder of debt securities; |
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the
dates on which and the price or prices at which we may repurchase the debt securities at our option or at the option of the holders
of debt securities and other detailed terms and provisions of these repurchase obligations; |
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the
denominations in which the debt securities will be issued, if other than denominations of $1,000 and any integral multiple thereof; |
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the
portion of principal amount of the debt securities payable upon declaration of acceleration of the maturity date, if other than the
entire principal amount; |
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if
other than the U.S. dollar, the currencies or currency units in which the debt securities are issued and in which the principal of,
premium and interest, if any, on, and additional amounts, if any, in respect of the debt securities will be payable; |
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whether
the debt securities are to be issued at any original issue discount, or OID, and the amount of discount with which such debt securities
may be issued; |
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whether
the debt securities will be issued in the form of certificated debt securities or global debt securities; |
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the
extent to which any of the debt securities will be issuable in temporary or permanent global form and, if so, the identity of the
depositary for the global debt security, or the manner in which any interest payable on a temporary or permanent global debt security
will be paid; |
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information
with respect to book-entry procedures; |
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the
terms and conditions upon which the debt securities will be so convertible or exchangeable into securities or property of another
person, if at all, and any additions or changes, if any, to permit or facilitate such conversion or exchange; |
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whether
the debt securities will be subject to subordination and the terms of such subordination; |
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any
restriction or condition on the transferability of the debt securities; |
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a
discussion of any material United States federal income tax consequences of owning and disposing of the debt securities; |
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the
provisions related to compensation and reimbursement of the trustee which applies to securities of such series; |
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the
events of default and covenants with respect to the debt securities and the acceleration provisions with respect to the debt securities; |
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any
provisions for the satisfaction and discharge or defeasance or covenant defeasance of the indenture under which the debt securities
are issued; |
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if
other than the trustee, the identity of each security registrar, paying agent and authenticating agent; and |
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other terms of the debt securities. |
The
indenture and the debt securities will be governed by and construed in accordance with the laws of the State of New York. We intend to
disclose the relevant restrictive covenants for any issuance or series of debt securities in the applicable prospectus supplement. Unless
otherwise indicated in the applicable prospectus supplement, the debt securities will not be listed on any securities exchange. As of
the date of this prospectus, we have no outstanding registered debt securities.
DESCRIPTION
OF WARRANTS
We
may issue, either separately or together with other securities, warrants for the purchase of any of the other types of securities that
we may sell under this prospectus.
The
warrants will be issued under warrant agreements to be entered into between us and a bank or trust company, as warrant agent, all to
be set forth in the applicable prospectus supplement relating to any or all warrants in respect of which this prospectus is being delivered.
Copies of the form of agreement for each warrant, which we refer to collectively as “warrant agreements,” including the forms
of certificates representing the warrants, which we refer to collectively as “warrant certificates,” and reflecting the provisions
to be included in such agreements that will be entered into with respect to the particular offerings of each type of warrant, will be
filed with the SEC and incorporated by reference as exhibits to the registration statement of which this prospectus forms a part.
The
following description sets forth certain general terms and provisions of the warrants to which any prospectus supplement may relate.
The particular terms of the warrants to which any prospectus supplement may relate and the extent, if any, to which the general provisions
may apply to the warrants so offered will be described in the applicable prospectus supplement. To the extent that any particular terms
of the warrants, warrant agreements or warrant 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 warrant agreement and certificate for additional information before you purchase any of our warrants.
General
The
prospectus supplement will describe the terms of the warrants in respect of which this prospectus is being delivered, as well as the
related warrant agreement and warrant certificates, including the following, where applicable:
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the
principal amount of, or the number of, securities, as the case may be, purchasable upon exercise of each warrant and the initial
price at which the principal amount or number of securities, as the case may be, may be purchased upon such exercise; |
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the
designation and terms of the securities, if other than common stock, purchasable upon exercise of the warrants and of any securities,
if other than common stock, with which the warrants are issued; |
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the
procedures and conditions relating to the exercise of the warrants; |
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the
date, if any, on and after which the warrants, and any securities with which the warrants are issued, will be separately transferable; |
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the
offering price, if any, of the warrants; |
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the
date on which the right to exercise the warrants will commence and the date on which that right will expire; |
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if
applicable, a discussion of the material United States federal income tax considerations applicable to the exercise of the warrants; |
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whether
the warrants represented by the warrant certificates will be issued in registered or bearer form and, if registered, where they may
be transferred and registered; |
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call
provisions, if any, of the warrants; |
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antidilution
provisions, if any, of the warrants; and |
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any
other material terms of the warrants. |
The
description in the prospectus supplement will not necessarily be complete and will be qualified in its entirety by reference to the warrant
agreement and warrant certificate relating to the warrants being offered.
Exercise
of Warrants
Each
warrant will entitle the holder to purchase for cash that principal amount of, or number of, securities, as the case may be, at the exercise
price set forth in, or to be determined as set forth in, the applicable prospectus supplement relating to the warrants. After the close
of business on the expiration date, unexercised warrants will become void. Upon receipt of payment and the warrant certificate properly
completed and duly executed, we will, as soon as practicable, issue the securities purchasable upon exercise of the warrant. If less
than all of the warrants represented by the warrant certificate are exercised, a new warrant certificate will be issued for the remaining
amount of warrants.
No
Rights of Security Holder Prior to Exercise
Before
the exercise of their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon the
exercise of the warrants, and will not be entitled to:
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the case of warrants to purchase debt securities, payments of principal of, or any premium or interest on, the debt securities purchasable
upon exercise; or |
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in
the case of warrants to purchase equity securities, the right to vote or to receive dividend payments or similar distributions on
the securities purchasable upon exercise. |
DESCRIPTION
OF UNITS
We
may, from time to time, issue units composed of one or more of the other securities that may be offered under this prospectus, 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 included security. We may enter into one or more unit agreements
with a unit agent. Each unit agent will be a bank or trust company that we select. 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.
You
should read any prospectus supplement related to the units being offered, as well as the complete unit agreements that contain the terms
of the units. We will file as an exhibit to the registration statement of which this prospectus forms a part, or will incorporate by
reference from another report that we file with the SEC, the form of each unit agreement relating to units offered under this prospectus.
Any
applicable prospectus supplement may describe, among other things:
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material terms of the units and of the securities composing the units, including whether and under what circumstances those securities
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any
material provisions relating to the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising
the units; |
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the
date, if any, on and after which the constituent securities composing the units will be separately transferable; |
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any
special United States federal income tax considerations applicable to the units; and |
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DESCRIPTION
OF RIGHTS
As
specified in the applicable prospectus supplement, we may issue rights to purchase the securities offered in this prospectus to our existing
stockholders, and such rights may or may not be issued for consideration. The applicable prospectus supplement will describe the terms
of any such rights. The description in the prospectus supplement will not purport to be complete and will be qualified in its entirety
by reference to the documents pursuant to which such rights will be issued.
FORMS
OF SECURITIES
Each
debt security, warrant, unit and right will be represented either by a certificate issued in definitive form to a particular investor
or by one or more global securities representing the entire issuance of securities. Certificated securities will be issued in definitive
form and global securities will be issued in registered form. Definitive securities name you or your nominee as the owner of the security,
and in order to transfer or exchange these securities or to receive payments other than interest or other interim payments, you or your
nominee must physically deliver the securities to the trustee, registrar, paying agent or other agent, as applicable. Global securities
name a depositary or its nominee as the owner of the debt securities, warrants, units or rights represented by these global securities.
The depositary maintains a computerized system that will reflect each investor’s beneficial ownership of the securities through
an account maintained by the investor with its broker/dealer, bank, trust company or other representative, as we explain more fully below.
Registered
Global Securities
We
may issue the registered debt securities, warrants, units and rights in the form of one or more fully registered global securities that
will be deposited with a depositary or its nominee identified in the applicable prospectus supplement and registered in the name of that
depositary or nominee. In those cases, one or more registered global securities will be issued in a denomination or aggregate denominations
equal to the portion of the aggregate principal or face amount of the securities to be represented by registered global securities. Unless
and until it is exchanged in whole for securities in definitive registered form, a registered global security may not be transferred
except as a whole by and among the depositary for the registered global security, the nominees of the depositary or any successors of
the depositary or those nominees.
If
not described below, any specific terms of the depositary arrangement with respect to any securities to be represented by a registered
global security will be described in the prospectus supplement relating to those securities. We anticipate that the following provisions
will apply to all depositary arrangements.
Ownership
of beneficial interests in a registered global security will be limited to persons, called participants, that have accounts with the
depositary or persons that may hold interests through participants. Upon the issuance of a registered global security, the depositary
will credit, on its book-entry registration and transfer system, the participants’ accounts with the respective principal or face
amounts of the securities beneficially owned by the participants. Any dealers, underwriters or agents participating in the distribution
of the securities will designate the accounts to be credited. Ownership of beneficial interests in a registered global security will
be shown on, and the transfer of ownership interests will be effected only through, records maintained by the depositary, with respect
to interests of participants, and on the records of participants, with respect to interests of persons holding through participants.
The laws of some states may require that some purchasers of securities take physical delivery of these securities in definitive form.
These laws may impair your ability to own, transfer or pledge beneficial interests in registered global securities.
So
long as the depositary, or its nominee, is the registered owner of a registered global security, that depositary or its nominee, as the
case may be, will be considered the sole owner or holder of the securities represented by the registered global security for all purposes
under the applicable indenture, warrant agreement, unit agreement or rights agreement. Except as described below, owners of beneficial
interests in a registered global security will not be entitled to have the securities represented by the registered global security registered
in their names, will not receive or be entitled to receive physical delivery of the securities in definitive form and will not be considered
the owners or holders of the securities under the applicable indenture, warrant agreement, unit agreement or rights agreement. Accordingly,
each person owning a beneficial interest in a registered global security must rely on the procedures of the depositary for that registered
global security and, if that person is not a participant, on the procedures of the participant through which the person owns its interest,
to exercise any rights of a holder under the applicable indenture, warrant agreement, unit agreement or rights agreement. We understand
that under existing industry practices, if we request any action of holders or if an owner of a beneficial interest in a registered global
security desires to give or take any action that a holder is entitled to give or take under the applicable indenture, warrant agreement,
unit agreement or rights agreement, the depositary for the registered global security would authorize the participants holding the relevant
beneficial interests to give or take that action, and the participants would authorize beneficial owners owning through them to give
or take that action or would otherwise act upon the instructions of beneficial owners holding through them.
Principal,
premium, if any, and interest payments on debt securities, and any payments to holders with respect to warrants, units or rights, represented
by a registered global security registered in the name of a depositary or its nominee will be made to the depositary or its nominee,
as the case may be, as the registered owner of the registered global security. None of us, the trustees, the warrant agents, the unit
agents, the rights agents or any other agent of ours, agent of the trustees or agent of the warrant agents, unit agents or rights agents
will have any responsibility or liability for any aspect of the records relating to payments made on account of beneficial ownership
interests in the registered global security or for maintaining, supervising or reviewing any records relating to those beneficial ownership
interests.
We
expect that the depositary for any of the securities represented by a registered global security, upon receipt of any payment of principal,
premium, interest or other distribution of underlying securities or other property to holders on that registered global security, will
immediately credit participants’ accounts in amounts proportionate to their respective beneficial interests in that registered
global security as shown on the records of the depositary. We also expect that payments by participants to owners of beneficial interests
in a registered global security held through participants will be governed by standing customer instructions and customary practices,
as is now the case with the securities held for the accounts of customers in bearer form or registered in “street name,”
and will be the responsibility of those participants.
If
the depositary for any of these securities represented by a registered global security is at any time unwilling or unable to continue
as depositary or ceases to be a clearing agency registered under the Exchange Act, and a successor depositary registered as a clearing
agency under the Exchange Act is not appointed by us within 90 days, we will issue securities in definitive form in exchange for the
registered global security that had been held by the depositary. Any securities issued in definitive form in exchange for a registered
global security will be registered in the name or names that the depositary gives to the relevant trustee, warrant agent, unit agent,
rights agent or other relevant agent of ours or theirs. It is expected that the depositary’s instructions will be based upon directions
received by the depositary from participants with respect to ownership of beneficial interests in the registered global security that
had been held by the depositary.
PLAN
OF DISTRIBUTION
We
may sell the securities from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination
of these methods or through underwriters or dealers, through agents and/or directly to one or more purchasers. The securities may be
distributed from time to time in one or more transactions:
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a fixed price or prices, which may be changed; |
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market prices prevailing at the time of sale; |
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prices related to such prevailing market prices; or |
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Each
time that we sell securities covered by this prospectus, we will provide a prospectus supplement or supplements that will describe the
method of distribution and set forth the terms and conditions of the offering of such securities, including the offering price of the
securities and the proceeds to us, if applicable.
Offers
to purchase the securities being offered by this prospectus may be solicited directly. Agents may also be designated to solicit offers
to purchase the securities from time to time. Any agent involved in the offer or sale of our securities will be identified in the applicable
prospectus supplement.
If
a dealer is utilized in the sale of the securities being offered by this prospectus, the securities will be sold 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
an underwriter is utilized in the sale of the securities being offered by this prospectus, an underwriting agreement will be executed
with the underwriter at the time of sale and the name of any underwriter will be provided in the prospectus supplement that 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 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 those dealers may receive compensation in the form of discounts, concessions or commissions
from the underwriters and/or commissions from the purchasers for which they may act as agent. Unless otherwise indicated in the applicable
prospectus supplement, an agent will be acting on a best efforts basis and a dealer will purchase securities as a principal, and may
then resell the securities at varying prices to be determined by the dealer.
Any
compensation paid 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, will be provided in the applicable prospectus supplement. 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 and to reimburse
those persons for certain expenses.
Any
common stock to be issued will be listed on the Nasdaq Capital Market, but any other securities may or may not be listed on a national
securities exchange. To facilitate the offering of securities, certain persons participating in the offering may engage in transactions
that stabilize, maintain or otherwise affect the price of the securities. This may include over-allotments or short sales of the securities,
which involve the sale by persons participating in the offering of more securities than were 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, if any. In addition, these persons may stabilize or maintain the price of the securities by bidding for or purchasing securities
in the open market or by imposing penalty bids, whereby selling concessions allowed to dealers participating in the offering may be reclaimed
if securities sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may be to
stabilize or maintain the market price of the securities at a level above that which might otherwise prevail in the open market. These
transactions may be discontinued at any time.
We
may engage in “at-the-market-offerings” into an existing trading market within the meaning of Rule 415(a)(4) under the Securities
Act. In addition, we may enter into derivative transactions with third parties or sell securities not covered by this prospectus to third
parties in privately negotiated transactions. If the applicable prospectus supplement so indicates, in connection with those derivatives,
the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions.
If so, the third party may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related
open borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings
of stock. The third party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be named in
the applicable prospectus supplement (or a post-effective amendment). In addition, we may otherwise loan or pledge securities to a financial
institution or other third party that in turn may sell the securities short using this prospectus and the applicable prospectus supplement.
Such financial institution or other third party may transfer its economic short position to investors in our securities or in connection
with a concurrent offering of other securities.
The
specific terms of any lock-up provisions in respect of any given offering will be described in the applicable prospectus supplement.
In
compliance with the guidelines of the Financial Industry Regulatory Authority, Inc., or FINRA, the maximum consideration or discount
to be received by any FINRA member or independent broker dealer may not exceed 8% of the aggregate proceeds of the offering.
The
underwriters, dealers and agents may engage in transactions with us, or perform services for us, in the ordinary course of business for
which they receive compensation.
LEGAL
MATTERS
The
validity of the issuance of the securities offered by this prospectus will be passed upon for us by Baker & Hostetler LLP, Los Angeles,
California.
EXPERTS
The
consolidated financial statements of NuZee, Inc. as of September 30, 2022 and 2021 and for each of the two years in the period ended
September 30, 2022 incorporated in this prospectus by reference to the Annual Report on Form 10-K for the year ended September 30, 2022
have been so incorporated in reliance on the report (which includes an explanatory paragraph relating to NuZee’s ability to continue
as a going concern as described in Note 2 to the financial statements) of MaloneBailey, LLP, an independent registered public accounting
firm, given on the authority of said firm as experts in auditing and accounting.
PART
II
Information
Not Required in Prospectus
Item
14. Other Expenses of Issuance and Distribution
The
following is a statement of the expenses (all of which are estimated) to be incurred by us in connection with the issuance and distribution
of securities registered under this registration statement:
SEC registration fee | |
$ | 10,810 | |
Legal fees and expenses | |
| * | |
Accounting fees and expenses | |
| * | |
Printing fees | |
| * | |
Blue Sky, qualification fees and expenses | |
| * | |
Transfer agent fees and expenses | |
| * | |
Trustee fees and expenses | |
| * | |
Warrant agent fees and expenses | |
| * | |
Miscellaneous | |
| * | |
Total | |
$ | * | |
* | Not presently known. An
estimate of the aggregate expenses in connection with the issuance and distribution of the securities being offered will be included
in the applicable prospectus supplement. |
Item
15. Indemnification of Directors and Officers
The
Company’s articles of incorporation, as amended, and third amended and restated bylaws provide that, to the fullest extent permitted
by the laws of the State of Nevada, any person who was or is a party or is threatened to be made a party to any proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or she is or was a director, trustee, officer, employee or agent
of the Company or is or was serving at the request of the Company as a director, trustee, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise. For the avoidance of doubt, the foregoing indemnification obligation includes,
without limitation, claims for monetary damages against an indemnitee to the fullest extent permitted under Chapter 78 of the Nevada
Revised Statutes as in existence on the date hereof.
The
indemnification provided shall be from and against expenses (including attorneys’ fees), judgment, fines and amounts paid in settlement
actually and reasonably incurred by such indemnified person in connection with such action, suit or proceeding if such indemnified person
acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Company, and
with respect to any criminal action or proceeding, had no reasonable cause to believe such indemnified person’s conduct was unlawful.
In
the case of any threatened, pending or completed action or suit by or in the right of the Company to procure a judgment in its favor
by reason of the fact that such indemnified person is or was a director, trustee, officer, employee or agent of the Company, or is or
was serving at the request of the Company as a director, trustee, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, no indemnification shall be made in respect of any claim, issue or matter as to which the indemnified
person shall have been adjudged to be liable for gross negligence or willful misconduct in the performance of such indemnified person’s
duty to the Company unless, and only to the extent that, the court in which such action or suit was brought shall determine upon application
that, despite circumstances of the case, such indemnified person is fairly and reasonably entitled to indemnity for such expenses as
such court shall deem proper.
The
termination of any action or suit by judgment or settlement shall not, of itself, create a presumption that the person did not act in
good faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of the Company.
To
the extent that indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling
the Company pursuant to the foregoing provisions, the Company has been informed that, in the opinion of the SEC, such indemnification
is against public policy as expressed in the Securities Act and is therefore unenforceable. If a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company
in the successful defense of any action, suit or proceeding) is asserted by any of the Company’s directors, officers or controlling
persons in connection with the securities being registered, the Company will, unless in the opinion of counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by the Company is against
public policy as expressed in the Securities Act and will be governed by the final adjudication of that issue.
Item
16. Exhibits
Exhibit
Number |
|
Description |
1.1 |
|
Form
of Underwriting Agreement* |
|
|
|
3.1 |
|
Articles of Incorporation of the Company, dated July 15, 2011 (incorporated by reference to Exhibit 3.1 to the Company’s Registration Statement on Form S-1 filed on September 6, 2011, SEC File Number 333-176684) |
|
|
|
3.2 |
|
Certificate of Amendment to Articles of Incorporation of the Company, dated May 6, 2013 (incorporated by reference to Exhibit 3.01(b) to the Company’s Current Report on Form 8-K filed on April 25, 2013, SEC File Number 333-176684) |
|
|
|
3.3 |
|
Certificate of Amendment to Articles of Incorporation of the Company, dated October 28, 2019 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on October 28, 2019, SEC File Number 000-55157) |
|
|
|
3.4 |
|
Certificate of Amendment to Articles of Incorporation of the Company, dated December 28, 2022 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on December 28, 2022 SEC File Number 001-39338) |
|
|
|
3.5 |
|
Third Amended and Restated Bylaws of the Company, effective March 17, 2022 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on March 23, 2022, SEC File Number 001-39338) |
|
|
|
4.1 |
|
Form of Indenture relating to Debt Securities |
|
|
|
4.2 |
|
Form
of Debt Security* |
|
|
|
4.3 |
|
Form
of Warrant Agreement and Certificate* |
|
|
|
4.4 |
|
Form
of Unit Agreement and Certificate* |
|
|
|
4.5 |
|
Form
of Subscription Rights Agreement and Certificate* |
|
|
|
5.1 |
|
Opinion of Baker & Hostetler LLP |
|
|
|
23.1 |
|
Consent of MaloneBailey, LLP |
|
|
|
23.2 |
|
Consent of Baker & Hostetler LLP (included in Exhibit 5.1) |
|
|
|
107 |
|
Filing Fee Table |
|
|
|
24.1 |
|
Power of Attorney (included on signature page hereto) |
|
|
|
25.1 |
|
Statement
of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of the Trustee under the Indenture** |
|
|
|
* |
|
To
be filed, if necessary, either by amendment to the Registration Statement or as an exhibit to a Current Report on Form 8-K and incorporated
by reference herein. |
|
|
|
** |
|
To
be filed, if necessary, in accordance with the requirements of Section 305(b)(2) of the Trust Indenture Act of 1939, as amended. |
Item
17. Undertakings
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i)
to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933 (the “Securities Act”);
(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 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) of this section do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) that are incorporated
by reference into 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, 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 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 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 to any purchaser in the initial distribution
of securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant
to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of
the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in
the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
(d)
The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to
act under subsection (a) of Section 310 of the Trust Indenture Act (the “Act”) in accordance with the rules and regulations
prescribed by the Commission under Section 305(b)(2) of the Act.
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 Richardson, State of Texas, on the 29th day of September, 2023.
|
NUZEE,
INC. |
|
|
|
|
By: |
/s/
Masateru Higashida |
|
Name: |
Masateru
Higashida |
|
Title: |
Chief
Executive Officer (Principal Executive Officer), President, Secretary, Treasurer and Director |
Each
person whose signature appears below constitutes and appoints Masateru Higashida and Randell Weaver, and each of them, his or her true
and lawful attorneys-in-fact and agents, 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, without limitation, post-effective amendments) to this
registration statement, and any registration statement relating to the offering covered by this registration statement and filed pursuant
to Rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith,
with the Securities Exchange Commission, under the Securities Act of 1933, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact
and agents or their substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities
indicated on September 29th, 2023.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/
Masateru Higashida |
|
Chief
Executive Officer (Principal Executive Officer), President, Secretary, Treasurer and Director |
|
September
29, 2023 |
Masateru
Higashida |
|
|
|
|
|
|
|
|
|
/s/
Randell Weaver |
|
Chief
Financial Officer (Principal Financial Officer and Principal Accounting Officer) |
|
September
29, 2023 |
Randell
Weaver |
|
|
|
|
|
|
|
|
|
/s/
Kevin J. Conner |
|
Director |
|
September
29, 2023 |
Kevin
J. Conner |
|
|
|
|
|
|
|
|
|
/s/
J. Chris Jones |
|
Director |
|
September
29, 2023 |
J.
Chris Jones |
|
|
|
|
|
|
|
|
|
/s/
Nobuki Kurita |
|
Director |
|
September
29, 2023 |
Nobuki
Kurita |
|
|
|
|
|
|
|
|
|
/s/
David G. Robson |
|
Director |
|
September
29, 2023 |
David
G. Robson |
|
|
|
|
EXHIBIT
4.1
NUZEE,
INC.
INDENTURE
Dated
as of
,
20
DEBT
SECURITIES
Trustee
INDENTURE
dated as of , 20 , among NuZee, Inc., a Nevada corporation (the “Company”), and , as trustee (the “Trustee”).
WITNESSETH:
WHEREAS,
the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of debentures, notes,
bonds or other evidences of indebtedness (the “Securities”) in an unlimited aggregate principal amount
to be issued from time to time in one or more series as provided in this Indenture; and
WHEREAS,
all things necessary to make this Indenture a valid and legally binding agreement of the Company, in accordance with its terms,
have been done.
NOW,
THEREFORE, THIS INDENTURE WITNESSETH:
That,
in consideration of the premises and the purchase of the Securities by the Holders thereof for the equal and proportionate benefit
of all of the present and future Holders of the Securities, each party agrees and covenants as follows:
ARTICLE
I
DEFINITIONS
For
all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(a)
the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(b)
all terms used herein without definition which are defined in the Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein; and
(c)
the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other subdivision.
(d)
References to “Article” or “Section” or other subdivision herein are references to an Article, Section
or other subdivision of the Indenture, unless the context otherwise requires.
Section
1.01 Definitions.
(a)
Unless otherwise defined in this Indenture or the context otherwise requires, all terms used herein shall have the meanings assigned
to them in the Trust Indenture Act.
(b)
Unless the context otherwise requires, the terms defined in this Section 1.01(b) shall for all purposes of this Indenture have
the meanings hereinafter set forth, the following definitions to be equally applicable to both the singular and the plural forms
of any of the terms herein defined:
Affiliate:
The
term “Affiliate,” with respect to any specified Person shall mean any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control”
when used with respect to any specified Person means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling”
and “controlled” have meanings correlative to the foregoing.
Authenticating
Agent:
The
term “Authenticating Agent” shall have the meaning assigned to it in Section 11.09.
Board
of Directors:
The
term “Board of Directors” shall mean either the board of directors of the Company or the executive or any other committee
of that board duly authorized to act in respect hereof.
Board
Resolution:
The
term “Board Resolution” shall mean a copy of a resolution or resolutions certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors (or by a committee of the Board of Directors to the
extent that any such other committee has been authorized by the Board of Directors to establish or approve the matters contemplated)
and to be in full force and effect on the date of such certification and delivered to the Trustee.
Business
Day:
The
term “Business Day,” when used with respect to any Place of Payment or any other particular location referred to in
this Indenture or in the Securities, shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment or other location are authorized or obligated by law or executive order to close.
Capital
Stock:
The
term “Capital Stock” shall mean:
(a)
in the case of a corporation, corporate stock;
(b)
in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;
(c)
in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests;
and
(d)
any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions
of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock,
whether or not such debt securities include any right of participation with Capital Stock.
Code:
The
term “Code” shall mean the Internal Revenue Code of 1986 as in effect on the date hereof.
Company:
The
term “Company” shall mean the Person named as the “Company” in the first paragraph of this Indenture until
a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company”
shall mean such successor Person.
Company
Order:
The
term “Company Order” shall mean a written order signed in the name of the Company by the Chairman, Chief Executive
Officer, President, Chief Financial Officer, any Vice President, Treasurer, any Assistant Treasurer, Controller, Assistant Controller,
Secretary or any Assistant Secretary of the Company, and delivered to the Trustee.
Corporate
Trust Office:
The
term “Corporate Trust Office,” or other similar term, shall mean the principal office of the Trustee at which at any
particular time its corporate trust business shall be administered, which office at the date hereof is located at , or such other
address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust
officer of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to
the Holders and the Company).
Currency:
The
term “Currency” shall mean U.S. Dollars or Foreign Currency.
Default:
The
term “Default” shall have the meaning assigned to it in Section 11.03.
Defaulted
Interest:
The
term “Defaulted Interest” shall have the same meaning assigned to it in Section 3.08(b).
Depositary:
The
term “Depositary” shall mean, with respect to the Securities of any series issuable in whole or in part in the form
of one or more Global Securities, the Person designated as Depositary by the Company pursuant to Section 3.01 until a successor
Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary”
shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, “Depositary”
as used with respect to the Securities of any such series shall mean the Depositary with respect to the Securities of that series.
Designated
Currency:
The
term “Designated Currency” shall have the same meaning assigned to it in Section 3.12.
Discharged:
The
term “Discharged” shall have the meaning assigned to it in Section 12.03.
Event
of Default:
The
term “Event of Default” shall have the meaning specified in Section 7.01.
Exchange
Act:
The
term “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
Exchange
Rate:
The
term “Exchange Rate” shall have the meaning assigned to it in Section 7.01.
Floating
Rate Security:
The
term “Floating Rate Security” shall mean a Security that provides for the payment of interest at a variable rate determined
periodically by reference to an interest rate index specified pursuant to Section 3.01.
Foreign
Currency:
The
term “Foreign Currency” shall mean a currency issued by the government of any country other than the United States
or a composite currency, the value of which is determined by reference to the values of the currencies of any group of countries.
GAAP:
The
term “GAAP,” with respect to any computation required or permitted hereunder, shall mean generally accepted accounting
principles in effect in the United States as in effect from time to time, including, without limitation, those set forth in the
opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by
a significant segment of the accounting profession.
Global
Security:
The
term “Global Security” shall mean any Security that evidences all or part of a series of Securities, issued in fully-registered
form to the Depositary for such series in accordance with Section 3.03 and bearing the legend prescribed in Section 3.03(g).
Holder;
Holder of Securities:
The
terms “Holder” and “Holder of Securities” are defined under “Securityholder; Holder of Securities;
Holder.”
Indebtedness:
The
term “Indebtedness” shall mean any and all obligations of a Person for money borrowed which, in accordance with GAAP,
would be reflected on the balance sheet of such Person as a liability on the date as of which Indebtedness is to be determined.
Indenture:
The
term “Indenture” or “this Indenture” shall mean this instrument and all indentures supplemental hereto.
Interest:
The
term “interest” shall mean, with respect to an Original Issue Discount Security that by its terms bears interest only
after Maturity, interest payable after Maturity.
Interest
Payment Date:
The
term “Interest Payment Date” shall mean, with respect to any Security, the Stated Maturity of an installment of interest
on such Security.
Mandatory
Sinking Fund Payment:
The
term “Mandatory Sinking Fund Payment” shall have the meaning assigned to it in Section 5.01.
Maturity:
The
term “Maturity,” with respect to any Security, shall mean the date on which the principal of such Security shall become
due and payable as therein and herein provided, whether by declaration, call for redemption or otherwise.
Members:
The
term “Members” shall have the meaning assigned to it in Section 3.03(i).
Notice
of Default:
The
term “Notice of Default” shall have the meaning assigned to it in Section 7.01.
Officer’s
Certificate:
The
term “Officer’s Certificate” shall mean a certificate signed by any of the Chairman of the Board of Directors,
Chief Executive Officer, President, Chief Financial Officer, any Vice President, Treasurer, any Assistant Treasurer, Controller,
Assistant Controller, Secretary or any Assistant Secretary of the Company and delivered to the Trustee. Each such certificate
shall include the statements provided for in Section 16.01 if and to the extent required by the provisions of such Section.
Opinion
of Counsel:
The
term “Opinion of Counsel” shall mean an opinion in writing signed by legal counsel, who may be an employee of or of
counsel to the Company, or may be other counsel that meets the requirements provided for in Section 16.01.
Optional
Sinking Fund Payment:
The
term “Optional Sinking Fund Payment” shall have the meaning assigned to it in Section 5.01.
Original
Issue Discount Security:
The
term “Original Issue Discount Security” shall mean any Security that is issued with “original issue discount”
within the meaning of Section 1273(a) of the Code and the regulations thereunder and any other Security designated by the Company
as issued with original issue discount for United States federal income tax purposes.
Outstanding:
The
term “Outstanding,” when used with respect to Securities means, as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(a)
Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(b)
Securities or portions thereof for which payment or redemption money in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such Securities or Securities as to which the Company’s obligations
have been Discharged; provided, however, that if such Securities or portions thereof are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and
(c)
Securities that have been paid pursuant to Section 3.07(b) or in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to
a Responsible Officer of the Trustee proof satisfactory to it that such Securities are held by a protected purchaser in whose
hands such Securities are valid obligations of the Company; provided, however, that in determining whether the Holders of the
requisite principal amount of Securities of a series Outstanding have performed any action hereunder, Securities owned by the
Company or any other obligor upon the Securities of such series or any Affiliate of the Company or of such other obligor shall
be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying
upon any such action, only Securities of such series that a Responsible Officer of the Trustee actually knows to be so owned shall
be so disregarded. Securities so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee’s right to act with respect to such Securities and that the pledgee is not
the Company or any other obligor upon such Securities or any Affiliate of the Company or of such other obligor. In determining
whether the Holders of the requisite principal amount of Outstanding Securities of a series have performed any action hereunder,
the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for such purpose shall be the
amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 7.02 and the principal amount of a Security denominated in a Foreign Currency that
shall be deemed to be Outstanding for such purpose shall be the amount calculated pursuant to Section 3.11(b).
Paying
Agent:
The
term “Paying Agent” shall have the meaning assigned to it in Section 6.02(a).
Person:
The
term “Person” shall mean an individual, a corporation, a limited liability company, a partnership, an association,
a joint stock company, a trust, an unincorporated organization or a government or an agency or political subdivision thereof.
Place
of Payment:
The
term “Place of Payment” shall mean, when used with respect to the Securities of any series, the place or places where
the principal of and premium, if any, and interest on the Securities of that series are payable as specified pursuant to Section
3.01.
Predecessor
Security:
The
term “Predecessor Security” shall mean, with respect to any Security, every previous Security evidencing all or a
portion of the same debt as that evidenced by such particular Security, and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.07 in lieu of a lost, destroyed or stolen Security shall be deemed to evidence the
same debt as the lost, destroyed or stolen Security.
Record
Date:
The
term “Record Date” shall mean, with respect to any interest payable on any Security on any Interest Payment Date,
the close of business on any date specified in such Security for the payment of interest pursuant to Section 3.01.
Redemption
Date:
The
term “Redemption Date” shall mean, when used with respect to any Security to be redeemed, in whole or in part, the
date fixed for such redemption by or pursuant to this Indenture and the terms of such Security, which, in the case of a Floating
Rate Security, unless otherwise specified pursuant to Section 3.01, shall be an Interest Payment Date only.
Redemption
Price:
The
term “Redemption Price,” when used with respect to any Security to be redeemed, in whole or in part, shall mean the
price at which it is to be redeemed pursuant to the terms of the Security and this Indenture.
Register:
The
term “Register” shall have the meaning assigned to it in Section 3.05(a).
Registrar:
The
term “Registrar” shall have the meaning assigned to it in Section 3.05(a).
Responsible
Officers:
The
term “Responsible Officers” of the Trustee hereunder shall mean any Vice President, any Assistant Vice President,
any Trust Officer, any Assistant Trust Officer or any other officer associated with the corporate trust department of the Trustee
customarily performing functions similar to those performed by any of the above designated officers, and also means, with respect
to a particular corporate trust matter, any other officer of the Trustee to whom such matter is referred because of such person’s
knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this
Indenture.
SEC:
The
term “SEC” shall mean the U.S. Securities and Exchange Commission, as constituted from time to time.
Securities
Act:
The
term “Securities Act” shall mean the Securities Act of 1933, as amended.
Security;
Securities:
The
term “Security” or “Securities” shall have the meaning stated in the recitals and shall more particularly
mean one or more of the Securities duly authenticated by the Trustee and delivered pursuant to the provisions of this Indenture.
Security
Custodian:
The
term “Security Custodian” shall mean the custodian with respect to any Global Security appointed by the Depositary,
or any successor Person thereto, and shall initially be the Paying Agent.
Securityholder;
Holder of Securities; Holder:
The
term “Securityholder” or “Holder of Securities” or “Holder,” shall mean the Person in whose
name Securities shall be registered in the Register kept for that purpose hereunder.
Senior
Indebtedness:
The
term “Senior Indebtedness” means the principal of (and premium, if any) and unpaid interest on (x) Indebtedness of
the Company, whether outstanding on the date hereof or thereafter created, incurred, assumed or guaranteed, for money borrowed
other than (a) any Indebtedness of the Company which when incurred, and without respect to any election under Section 1111(b)
of the Federal Bankruptcy Code, was without recourse to the Company, (b) any Indebtedness of the Company to any of its Subsidiaries,
(c) Indebtedness to any employee of the Company, (d) any liability for taxes, (e) Trade Payables and (f) any Indebtedness of the
Company which is expressly subordinate in right of payment to any other Indebtedness of the Company, and (y) renewals, extensions,
modifications and refundings of any such Indebtedness. For purposes of the foregoing and the definition of “Senior Indebtedness,”
the phrase “subordinated in right of payment” means debt subordination only and not lien subordination, and accordingly,
(i) unsecured indebtedness shall not be deemed to be subordinated in right of payment to secured indebtedness merely by virtue
of the fact that it is unsecured, and (ii) junior liens, second liens and other contractual arrangements that provide for priorities
among Holders of the same or different issues of indebtedness with respect to any collateral or the proceeds of collateral shall
not constitute subordination in right of payment. This definition may be modified or superseded by a supplemental indenture.
Special
Record Date:
The
term “Special Record Date” shall have the meaning assigned to it in Section 3.08(b)(i).
Stated
Maturity:
The
term “Stated Maturity” when used with respect to any Security or any installment of interest thereon, shall mean the
date specified in such Security as the fixed date on which the principal (or any portion thereof) of or premium, if any, on such
Security or such installment of interest is due and payable.
Subsidiary:
The
term “Subsidiary,” when used with respect to any Person, shall mean:
(a)
any corporation, limited liability company, association or other business entity of which more than 50% of the total voting power
of shares of Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting
agreement or stockholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers
or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly,
by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and
(b)
any partnership (i) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person
or (ii) the only general partners of which are that Person or one or more Subsidiaries of that Person (or any combination thereof).
Successor
Company:
The
term “Successor Company” shall have the meaning assigned to it in Section 3.06(i).
Trade
Payables:
The
term “Trade Payables” means accounts payable or any other Indebtedness or monetary obligations to trade creditors
created or assumed by the Company or any Subsidiary of the Company in the ordinary course of business (including guarantees thereof
or instruments evidencing such liabilities).
Trust
Indenture Act; TIA:
The
term “Trust Indenture Act” or “TIA” shall mean the Trust Indenture Act of 1939, as amended.
Trustee:
The
term “Trustee” shall mean the Person named as the “Trustee” in the first paragraph of this Indenture until
a successor Trustee shall have become such with respect to one or more series of Securities pursuant to the applicable provisions
of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series
shall mean the Trustee with respect to Securities of that series.
U.S.
Dollars:
The
term “U.S. Dollars” shall mean such currency of the United States as at the time of payment shall be legal tender
for the payment of public and private debts.
U.S.
Government Obligations:
The
term “U.S. Government Obligations” shall have the meaning assigned to it in Section 12.03.
United
States:
The
term “United States” shall mean the United States of America (including the States and the District of Columbia),
its territories and its possessions and other areas subject to its jurisdiction.
ARTICLE
II
FORMS
OF SECURITIES
Section
2.01 Terms of the Securities.
(a)
The Securities of each series shall be substantially in the form set forth in a Company Order or in one or more indentures supplemental
hereto, and shall have such appropriate insertions, omissions, substitutions and other variations as are required or permitted
by this Indenture, and may have such letters, numbers or other marks of identification or designation and such legends or endorsements
placed thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may
be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any
securities exchange on which any series of the Securities may be listed or of any automated quotation system on which any such
series may be quoted, or to conform to usage, all as determined by the officers executing such Securities as conclusively evidenced
by their execution of such Securities.
(b)
The terms and provisions of the Securities shall constitute, and are hereby expressly made, a part of this Indenture, and, to
the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture expressly agree to such
terms and provisions and to be bound thereby.
Section
2.02 Form of Trustee’s Certificate of Authentication.
(a)
Only such of the Securities as shall bear thereon a certificate substantially in the form of the Trustee’s certificate of
authentication hereinafter recited, executed by the Trustee by manual signature, shall be valid or become obligatory for any purpose
or entitle the Holder thereof to any right or benefit under this Indenture.
(b)
Each Security shall be dated the date of its authentication, except that any Global Security shall be dated as of the date specified
as contemplated in Section 3.01.
(c)
The form of the Trustee’s certificate of authentication to be borne by the Securities shall be substantially as follows:
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This
is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
|
|
Date
of Authentication:__________ |
__________________________________,
as Trustee |
|
|
|
By: |
|
|
|
Authorized
Signatory |
Section
2.03 Form of Trustee’s Certificate of Authentication by an Authenticating Agent. If at any time there shall be an
Authenticating Agent appointed with respect to any series of Securities, then the Trustee’s Certificate of Authentication
by such Authenticating Agent to be borne by Securities of each such series shall be substantially as follows:
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This
is one of the Securities issued referred to in the within-mentioned Indenture.
Date
of Authentication:__________ |
____________________________________,
as Trustee |
|
|
|
By: |
|
|
|
as
Authenticating Agent |
|
|
|
By: |
|
|
|
Authorized
Signatory |
ARTICLE
III
THE
DEBT SECURITIES
Section
3.01 Amount; Issuable in Series. 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. There shall be set forth in a Company
Order or in one or more indentures supplemental hereto, prior to the issuance of Securities of any series:
(a)
the title of the Securities of the series (which shall distinguish the Securities of such series from the Securities of all other
series, except to the extent that additional Securities of an existing series are being issued);
(b)
any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon transfer of, or in exchange for, or in lieu of, other Securities
of such series pursuant to Section 3.04, 3.06, 3.07, 4.06, or 14.05);
(c)
the dates on which or periods during which the Securities of the series may be issued, and the dates on, or the range of dates
within, which the principal of and premium, if any, on the Securities of such series are or may be payable or the method by which
such date or dates shall be determined or extended;
(d)
the rate or rates at which the Securities of the series shall bear interest, if any, or the method by which such rate or rates
shall be determined, the date or dates from which such interest shall accrue, or the method by which such date or dates shall
be determined, the Interest Payment Dates on which any such interest shall be payable, and the Record Dates for the determination
of Holders to whom interest is payable on such Interest Payment Dates or the method by which such date or dates shall be determined,
the right, if any, to extend or defer interest payments and the duration of such extension or deferral;
(e)
if other than U.S. Dollars, the Currency in which Securities of the series shall be denominated or in which payment of the principal
of, premium, if any, or interest on the Securities of the series shall be payable and any other terms concerning such payment;
(f)
if the amount of payment of principal of, premium, if any, or interest on the Securities of the series may be determined with
reference to an index, formula or other method including, but not limited to, an index based on a Currency or Currencies other
than that in which the Securities are stated to be payable, the manner in which such amounts shall be determined;
(g)
if the principal of, premium, if any, or interest on Securities of the series are to be payable, at the election of the Company
or a Holder thereof, in a Currency other than that in which the Securities are denominated or stated to be payable without such
election, the period or periods within which, and the terms and conditions upon which, such election may be made and the time
and the manner of determining the exchange rate between the Currency in which the Securities are denominated or payable without
such election and the Currency in which the Securities are to be paid if such election is made;
(h)
the place or places, if any, in addition to or instead of the Corporate Trust Office of the Trustee where the principal of, premium,
if any, and interest on Securities of the series shall be payable, and where Securities of any series may be presented for registration
of transfer, exchange or conversion, and the place or places where notices and demands to or upon the Company in respect of the
Securities of such series may be made;
(i)
the price or prices at which, the period or periods within which or the date or dates on 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, if the Company is to have that
option;
(j)
the obligation or right, if any, of the Company to redeem, purchase or repay Securities of the series pursuant to any sinking
fund, amortization or analogous provisions or at the option of a Holder thereof and the price or prices at which, the period or
periods within which or the date or dates on which, the Currency or Currencies in which and the terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(k)
if other than denominations of $1,000 or any integral multiple thereof, the denominations in which Securities of the series shall
be issuable;
(l)
if other than the principal amount thereof, the portion of the principal amount of the Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof pursuant to Section 7.02;
(m)
whether the Securities of the series are to be issued as Original Issue Discount Securities and the amount of discount with which
such Securities may be issued;
(n)
provisions, if any, for the defeasance of Securities of the series in whole or in part and any addition or change in the provisions
related to satisfaction and discharge;
(o)
whether the Securities of the series are to be issued in whole or in part in the form of one or more Global Securities and, in
such case, the Depositary for such Global Security or Securities and the terms and conditions, if any, upon which interests in
such Global Security or Securities may be exchanged in whole or in part for the individual Securities represented thereby;
(p)
the date as of which any Global Security of the series shall be dated if other than the original issuance of the first Security
of the series to be issued;
(q)
the form of the Securities of the series;
(r)
if the Securities of the series are to be convertible into or exchangeable for any securities or property of any Person (including
the Company), the terms and conditions upon which such Securities will be so convertible or exchangeable, and any additions or
changes, if any, to permit or facilitate such conversion or exchange;
(s)
whether the Securities of such series are subject to subordination and the terms of such subordination;
(t)
any restriction or condition on the transferability of the Securities of such series;
(u)
any addition or change in the provisions related to compensation and reimbursement of the Trustee which applies to Securities
of such series;
(v)
any addition or change in the provisions related to supplemental indentures set forth in Sections 14.04 and 14.02 which applies
to Securities of such series;
(w)
provisions, if any, granting special rights to Holders upon the occurrence of specified events;
(x)
any addition to or change in the Events of Default which applies to any Securities of the series and any change in the right of
the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section
7.02 and any addition or change in the provisions set forth in Article VII which applies to Securities of the series;
(y)
any addition to or change in the covenants set forth in Article VI which applies to Securities of the series; and
(z)
any other terms of the Securities of such series (which terms shall not be inconsistent with the provisions of this Indenture,
except as permitted by Section 14.01).
All
Securities of any one series shall be substantially identical, except as to denomination and except as may otherwise be provided
herein or set forth in a Company Order or in one or more indentures supplemental hereto.
Section
3.02 Denominations. In the absence of any specification pursuant to Section 3.01 with respect to Securities of any series,
the Securities of such series shall be issuable only as Securities in denominations of any integral multiple of $1,000, and shall
be payable only in U.S. Dollars.
Section
3.03 Execution, Authentication, Delivery and Dating.
(a)
The Securities shall be executed in the name and on behalf of the Company by the manual or facsimile signature of its Chairman
of the Board of Directors, Chief Executive Officer, President, Chief Operating Officer, Chief Financial Officer, one of its Vice
Presidents or Treasurer. If the Person whose signature is on a Security no longer holds that office at the time the Security is
authenticated and delivered, the Security shall nevertheless be valid.
(b)
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 Company Order for the authentication and delivery
of such Securities and, if required pursuant to Section 3.01, a supplemental indenture or Company Order setting forth the terms
of the Securities of a series. The Trustee shall thereupon authenticate and deliver such Securities without any further action
by the Company. The Company Order shall specify the amount of Securities to be authenticated and the date on which the original
issue of Securities is to be authenticated.
(c)
In authenticating the first Securities of any series and accepting the additional responsibilities under this Indenture in relation
to such Securities the Trustee shall receive, and (subject to Section 11.02) shall be fully protected in relying upon an Officer’s
Certificate and an Opinion of Counsel, each prepared in accordance with Section 16.01 stating that the conditions precedent, if
any, provided for in the Indenture have been complied with.
(d)
The Trustee shall have the right to decline to authenticate and deliver the Securities under this Section 3.03 if the issue of
the 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 which is not reasonably acceptable to the Trustee.
(e)
Each Security shall be dated the date of its authentication, except as otherwise provided pursuant to Section 3.01 with respect
to the Securities of such series.
(f)
Notwithstanding the provisions of Section 3.01 and of this Section 3.03, if all of the Securities of any series are not to be
originally issued at the same time, then the documents required to be delivered pursuant to this Section 3.03 must be delivered
only once prior to the authentication and delivery of the first Security of such series;
(g)
If the Company shall establish pursuant to Section 3.01 that the Securities of a series are to be issued in whole or in part in
the form of one or more Global Securities, then the Company shall execute and the Trustee shall authenticate and deliver one or
more Global Securities that (i) shall represent an aggregate amount equal to the aggregate principal amount of the Outstanding
Securities of such series to be represented by such Global Securities, (ii) shall be registered, if in registered form, in the
name of the Depositary for such Global Security or Securities or the nominee of such Depositary, (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary’s instruction and (iv) shall bear a legend substantially to the
following effect:
“Unless
and until it is exchanged in whole or in part for the individual Securities represented hereby, this Global Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor
Depositary.”
The
aggregate principal amount of each Global Security may from time to time be increased or decreased by adjustments made on the
records of the Security Custodian, as provided in this Indenture.
(h)
Each Depositary designated pursuant to Section 3.01 for a Global Security in registered form must, at the time of its designation
and at all times while it serves as such Depositary, be a clearing agency registered under the Exchange Act and any other applicable
statute or regulation.
(i)
Members of, or participants in, the Depositary (“Members”) shall have no rights under this Indenture
with respect to any Global Security held on their behalf by the Depositary or by the Security Custodian under such Global Security,
and the Depositary may be treated by the Company, the Trustee, the Paying Agent and the Registrar and any of their agents as the
absolute owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee, the Paying Agent or the Registrar or any of their agents from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Members, the operation of
customary practices of the Depositary governing the exercise of the rights of an owner of a beneficial interest in any Global
Security. The Holder of a Global Security may grant proxies and otherwise authorize any Person, including Members and Persons
that may hold interests through Members, to take any action that a Holder is entitled to take under this Indenture or the Securities.
(j)
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears
on such Security a certificate of authentication substantially in one of the forms provided for herein duly executed by the Trustee
or by an Authenticating Agent by manual or facsimile signature of an authorized signatory of the Trustee, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
Section
3.04 Temporary Securities.
(a)
Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities that are printed, lithographed, typewritten, mimeographed or otherwise reproduced,
in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered
form and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities
may determine, as conclusively evidenced by their execution of such Securities. Any such temporary Security may be in global form,
representing all or a portion of the Outstanding Securities of such series. Every such temporary Security shall be executed by
the Company and shall be authenticated and delivered by the Trustee upon the same conditions and in substantially the same manner,
and with the same effect, as the definitive Security or Securities in lieu of which it is issued.
(b)
If temporary Securities of any series are issued, the Company will cause definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall
be exchangeable for definitive Securities of such series upon surrender of such temporary Securities at the office or agency of
the Company in a Place of Payment for such series, without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Securities of any series, the Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series of authorized denominations and of like tenor. Until
so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture
as definitive Securities of such series.
(c)
Upon any exchange of a portion of a temporary Global Security for a definitive Global Security or for the individual Securities
represented thereby pursuant to this Section 3.04 or Section 3.06, the temporary Global Security shall be endorsed by the Trustee
to reflect the reduction of the principal amount evidenced thereby, whereupon the principal amount of such temporary Global Security
shall be reduced for all purposes by the amount so exchanged and endorsed.
Section
3.05 Registrar.
(a)
The Company will keep, at an office or agency to be maintained by it in a Place of Payment where Securities may be presented for
registration or presented and surrendered for registration of transfer or of exchange, and where Securities of any series that
are convertible or exchangeable may be surrendered for conversion or exchange, as applicable (the “Registrar”),
a security register for the registration and the registration of transfer or of exchange of the Securities (the registers maintained
in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred
to as the “Register”), as in this Indenture provided, which Register shall at all reasonable times be
open for inspection by the Trustee. Such Register shall be in written form or in any other form capable of being converted into
written form within a reasonable time. The Company may have one or more co-Registrars; the term “Registrar”
includes any co-registrar.
(b)
The Company shall enter into an appropriate agency agreement with any Registrar or co-Registrar not a party to this Indenture.
The agreement shall implement the provisions of this Indenture that relate to such agent. The Company shall notify the Trustee
of the name and address of each such agent. If the Company fails to maintain a Registrar for any series, the Trustee shall act
as such and shall be entitled to appropriate compensation therefor pursuant to Section 11.01. The Company or any Affiliate thereof
may act as Registrar, co-Registrar or transfer agent.
(c)
The Company hereby appoints the Trustee at its Corporate Trust Office as Registrar in connection with the Securities and this
Indenture, until such time as another Person is appointed as such.
Section
3.06 Transfer and Exchange.
(a)
Transfer.
(i)
Upon surrender for registration of transfer of any Security of any series at the Registrar the Company shall execute, and the
Trustee or any Authenticating Agent shall authenticate and deliver, in the name of the designated transferee, one or more new
Securities of the same series for like aggregate principal amount of any authorized denomination or denominations. The transfer
of any Security shall not be valid as against the Company or the Trustee unless registered at the Registrar at the request of
the Holder, or at the request of his, her or its attorney duly authorized in writing.
(ii)
Notwithstanding any other provision of this Section, unless and until it is exchanged in whole or in part for the individual Securities
represented thereby, a Global Security representing all or a portion of the Securities of a series may not be transferred except
as a whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a
nominee of such successor Depositary.
(b)
Exchange.
(i)
At the option of the Holder, Securities of any series (other than a Global Security, except as set forth below) may be exchanged
for other Securities of the same series for like aggregate principal amount of any authorized denomination or denominations, upon
surrender of the Securities to be exchanged at the Registrar.
(ii)
Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver,
the Securities that the Holder making the exchange is entitled to receive.
(c)
Exchange of Global Securities for Individual Securities. Except as provided below, owners of beneficial interests in Global Securities
will not be entitled to receive individual Securities.
(i)
Individual Securities shall be issued to all owners of beneficial interests in a Global Security in exchange for such interests
if: (A) at any time the Depositary for the Securities of a series notifies the Company that it is unwilling or unable to continue
as Depositary for the Securities of such series or if at any time the Depositary for the Securities of such series shall no longer
be eligible under Section 3.03(h) and, in each case, a successor Depositary is not appointed by the Company within 90 days of
such notice, or (B) the Company executes and delivers to the Trustee and the Registrar an Officer’s Certificate stating
that such Global Security shall be so exchangeable.
In
connection with the exchange of an entire Global Security for individual Securities pursuant to this subsection (c), such Global
Security shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of individual Securities of such series, will authenticate and
deliver to each beneficial owner identified by the Depositary in exchange for its beneficial interest in such Global Security,
an equal aggregate principal amount of individual Securities of authorized denominations.
(ii)
The owner of a beneficial interest in a Global Security will be entitled to receive an individual Security in exchange for such
interest if an Event of Default has occurred and is continuing. Upon receipt by the Security Custodian and Registrar of instructions
from the Holder of a Global Security directing the Security Custodian and Registrar to (x) issue one or more individual Securities
in the amounts specified to the owner of a beneficial interest in such Global Security and (y) debit or cause to be debited an
equivalent amount of beneficial interest in such Global Security, subject to the rules and regulations of the Depositary:
(A)
the Security Custodian and Registrar shall notify the Company and the Trustee of such instructions, identifying the owner and
amount of such beneficial interest in such Global Security;
(B)
the Company shall promptly execute and the Trustee, upon receipt of a Company Order for the authentication and delivery of individual
Securities of such series, shall authenticate and deliver to such beneficial owner individual Securities in an equivalent amount
to such beneficial interest in such Global Security; and
(C)
the Security Custodian and Registrar shall decrease such Global Security by such amount in accordance with the foregoing. In the
event that the individual Securities are not issued to each such beneficial owner promptly after the Registrar has received a
request from the Holder of a Global Security to issue such individual Securities, the Company expressly acknowledges, with respect
to the right of any Holder to pursue a remedy pursuant to Section 7.07 hereof, the right of any beneficial Holder of Securities
to pursue such remedy with respect to the portion of the Global Security that represents such beneficial Holder’s Securities
as if such individual Securities had been issued.
(iii)
If specified by the Company pursuant to Section 3.01 with respect to a series of Securities, the Depositary for such series of
Securities may surrender a Global Security for such series of Securities in exchange in whole or in part for individual Securities
of such series on such terms as are acceptable to the Company and such Depositary. Thereupon, the Company shall execute, and the
Trustee shall authenticate and deliver, without service charge,
(A)
to each Person specified by such Depositary a new individual Security or Securities of the same series, of any authorized denomination
as requested by such Person in aggregate principal amount equal to and in exchange for such Person’s beneficial interest
in the Global Security; and
(B)
to such Depositary a new Global Security in a denomination equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of individual Securities delivered to Holders thereof.
(iv)
In any exchange provided for in clauses (i) through (iii), the Company will execute and the Trustee will authenticate and deliver
individual Securities in registered form in authorized denominations.
(v)
Upon the exchange in full of a Global Security for individual Securities, such Global Security shall be canceled by the Trustee.
Individual Securities issued in exchange for a Global Security pursuant to this Section shall be registered in such names and
in such authorized denominations as the Depositary for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Persons in whose names
such Securities are so registered.
(d)
All Securities issued upon any registration of transfer or exchange of Securities shall be valid obligations of the Company evidencing
the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered for such registration of
transfer or exchange.
(e)
Every Security presented or surrendered for registration of transfer, or for exchange or payment shall (if so required by the
Company, the Trustee or the Registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer
in form satisfactory to the Company, the Trustee and the Registrar, duly executed by the Holder thereof or by his, her or its
attorney duly authorized in writing.
(f)
No service charge will be made for any registration of transfer or exchange of Securities. The Company may require payment of
a sum sufficient to cover any tax, assessment or other governmental charge that may be imposed in connection with any registration
of transfer or exchange of Securities, other than those expressly provided in this Indenture to be made at the Company’s
own expense or without expense or charge to the Holders.
(g)
The Company shall not be required to (i) register, transfer or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the transmission of a notice of redemption of Securities of such series selected
for redemption under Section 4.03 and ending at the close of business on the day of such transmission, or (ii) register, transfer
or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed
in part.
(h)
Prior to the due presentation for registration of transfer or exchange of any Security, the Company, the Trustee, the Paying Agent,
the Registrar, any co-Registrar or any of their agents may deem and treat the Person in whose name a Security is registered as
the absolute owner of such Security (whether or not such Security shall be overdue and notwithstanding any notation of ownership
or other writing thereon) for all purposes whatsoever, and none of the Company, the Trustee, the Paying Agent, the Registrar,
any co-Registrar or any of their agents shall be affected by any notice to the contrary.
(i)
In case a successor Company (“Successor Company”) has executed an indenture supplemental hereto with
the Trustee pursuant to Article XIV, any of the Securities authenticated or delivered pursuant to such transaction may, from time
to time, at the request of the Successor Company, be exchanged for other Securities executed in the name of the Successor Company
with such changes in phraseology and form as may be appropriate, but otherwise identical to the Securities surrendered for such
exchange and of like principal amount; and the Trustee, upon Company Order of the Successor Company, shall authenticate and deliver
Securities as specified in such order for the purpose of such exchange. If Securities shall at any time be authenticated and delivered
in any new name of a Successor Company pursuant to this Section 3.06 in exchange or substitution for or upon registration of transfer
of any Securities, such Successor Company, at the option of the Holders but without expense to them, shall provide for the exchange
of all Securities at the time Outstanding for Securities authenticated and delivered in such new name.
(j)
Each Holder of a Security agrees to indemnify the Company and the Trustee against any liability that may result from the transfer,
exchange or assignment of such Holder’s Security in violation of any provision of this Indenture and/or applicable United
States federal or state securities laws.
(k)
The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security other than to
require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when
expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with
the express requirements hereof.
(l)
Neither the Trustee nor any agent of the Trustee shall have any responsibility for any actions taken or not taken by the Depositary.
Section
3.07 Mutilated, Destroyed, Lost and Stolen Securities.
(a)
If (i) any mutilated Security is surrendered to the Trustee at its Corporate Trust Office or (ii) the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any Security, and there is delivered to the Company
and the Trustee security or indemnity bond satisfactory to them to save each of them and any Paying Agent harmless, and neither
the Company nor the Trustee receives notice that such Security has been acquired by a protected purchaser, then the Company shall
execute and upon Company Order the Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed,
lost or stolen Security, a new Security of the same series and of like tenor, form, terms and principal amount, bearing a number
not contemporaneously outstanding, that neither gain nor loss in interest shall result from such exchange or substitution.
(b)
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in
its discretion may, instead of issuing a new Security, pay the amount due on such Security in accordance with its terms.
(c)
Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in respect thereto and any other expenses (including the fees and expenses
of the Trustee) connected therewith.
(d)
Every new Security of any series issued pursuant to this Section shall constitute an original additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly
issued hereunder.
(e)
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect
to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section
3.08 Payment of Interest; Interest Rights Preserved.
(a)
Interest on any Security that is payable and is punctually paid or duly provided for on any Interest Payment Date shall be paid
to the Person in whose name such Security (or one or more Predecessor Securities) is registered at the close of business on the
Record Date for such interest notwithstanding the cancellation of such Security upon any transfer or exchange subsequent to the
Record Date. Payment of interest on Securities shall be made at the Corporate Trust Office (except as otherwise specified pursuant
to Section 3.01) or, at the option of the Company, by check mailed to the address of the Person entitled thereto as such address
shall appear in the Register or, in accordance with arrangements satisfactory to the Trustee, by wire transfer to an account designated
by the Holder.
(b)
Any interest on any Security that is payable but is not punctually paid or duly provided for on any Interest Payment Date (herein
called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Record
Date by virtue of his, her or its having been such a Holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in clause (i) or (ii) below:
(i)
The Company may elect to make payment of any Defaulted Interest 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
(a “Special Record Date”), 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 be not more than 15 calendar days and not less than 10 calendar days prior to the date of the proposed
payment and not less than 10 calendar 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 the Holders of such Securities at their addresses as they appear in the Register, not less than 10 calendar 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 at the close of business on such Special Record Date and shall no longer be payable pursuant
to the following clause (ii).
(ii)
The Company may make payment of any Defaulted Interest on 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.
(c)
Subject to the provisions set forth herein relating to Record Dates, each Security delivered pursuant to any provision of this
Indenture in exchange or substitution for, or upon registration of transfer of, any other Security shall carry all the rights
to interest accrued and unpaid, and to accrue, which were carried by such other Security.
Section
3.09 Cancellation. Unless otherwise specified pursuant to Section 3.01 for Securities of any series, all Securities surrendered
for payment, redemption, registration of transfer or exchange or credit against any sinking fund or otherwise shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee for cancellation and shall be promptly canceled by it and, if
surrendered to the Trustee, shall be promptly canceled by it. The Company may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder that the Company may have acquired in any manner whatsoever, and
all Securities so delivered shall be promptly canceled by the Trustee. No Securities shall be authenticated in lieu of or in exchange
for any Securities canceled as provided in this Section, except as expressly permitted by this Indenture. The Trustee shall dispose
of all canceled Securities held by it in accordance with its then customary procedures and deliver a certificate of such disposal
to the Company upon its request therefor. The acquisition of any Securities by the Company shall not operate as a redemption or
satisfaction of the Indebtedness represented thereby unless and until such Securities are surrendered to the Trustee for cancellation.
Section
3.10 Computation of Interest. Except as otherwise specified pursuant to Section 3.01 for Securities of any series, interest
on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section
3.11 Currency of Payments in Respect of Securities.
(a)
Except as otherwise specified pursuant to Section 3.01 for Securities of any series, payment of the principal of and premium,
if any, and interest on Securities of such series will be made in U.S. Dollars.
(b)
For purposes of any provision of the Indenture in which the Holders of Outstanding Securities may perform an action that
requires that a specified percentage of the Outstanding Securities of all series perform such action and for purposes of any
decision or determination by the Trustee of amounts due and unpaid for the principal of and premium, if any, and interest on
the Securities of all series in respect of which moneys are
to be disbursed ratably, the principal of and premium, if
any, and interest on the Outstanding Securities denominated in a Foreign Currency will be the amount in U.S. Dollars based
upon exchange rates, determined as specified pursuant to Section 3.01 for Securities of such series, as of the date for
determining whether the Holders entitled to perform such action have performed it or as of the date of such decision or
determination by the Trustee, as the case may be.
(c)
Any decision or determination to be made regarding exchange rates shall be made by an agent appointed by the Company; provided,
that such agent shall accept such appointment in writing and the terms of such appointment shall, in the opinion of the Company
at the time of such appointment, require such agent to make such determination by a method consistent with the method provided
pursuant to Section 3.01 for the making of such decision or determination. All decisions and determinations of such agent regarding
exchange rates shall, in the absence of manifest error, be conclusive for all purposes and irrevocably binding upon the Company,
the Trustee and all Holders of the Securities.
Section
3.12 Judgments. The Company may provide pursuant to Section 3.01 for Securities of any series that (a) the obligation,
if any, of the Company to pay the principal of, premium, if any, and interest on the Securities of any series in a Foreign Currency
or U.S. Dollars (the “Designated Currency”) as may be specified pursuant to Section 3.01 is of the essence
and agrees that, to the fullest extent possible under applicable law, judgments in respect of such Securities shall be given in
the Designated Currency; (b) the obligation of the Company to make payments in the Designated Currency of the principal of and
premium, if any, and interest on such Securities shall, notwithstanding any payment in any other Currency (whether pursuant to
a judgment or otherwise), be discharged only to the extent of the amount in the Designated Currency that the Holder receiving
such payment may, in accordance with normal banking procedures, purchase with the sum paid in such other Currency (after any premium
and cost of exchange) on the business day in the country of issue of the Designated Currency or in the international banking community
(in the case of a composite currency) immediately following the day on which such Holder receives such payment; (c) if the amount
in the Designated Currency that may be so purchased for any reason falls short of the amount originally due, the Company shall
pay such additional amounts as may be necessary to compensate for such shortfall; and (d) any obligation of the Company not discharged
by such payment shall be due as a separate and independent obligation and, until discharged as provided herein, shall continue
in full force and effect.
Section
3.13 CUSIP Numbers. The Company in issuing any Securities may use CUSIP, ISIN or other similar numbers, if then generally
in use, and thereafter with respect to such series, the Trustee may use such numbers in any notice of redemption or exchange with
respect to such series provided that any such notice may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the
other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission
of such numbers. The Company will promptly notify the Trustee in writing of any change in the CUSIP, ISIN or other similar numbers.
ARTICLE
IV
REDEMPTION
OF SECURITIES
Section
4.01 Applicability of Right of Redemption. Redemption of Securities (other than pursuant to a sinking fund, amortization
or analogous provision) permitted by the terms of any series of Securities shall be made (except as otherwise specified pursuant
to Section 3.01 for Securities of any series) in accordance with this Article; provided, however, that if any such terms of a
series of Securities shall conflict with any provision of this Article, the terms of such series shall govern.
Section
4.02 Selection of Securities to be Redeemed.
(a)
If the Company shall at any time elect to redeem all or any portion of the Securities of a series then Outstanding, it shall at
least 30 days prior to the Redemption Date fixed by the Company (unless a shorter period shall be satisfactory to the Trustee)
notify the Trustee of such Redemption Date and of the principal amount of Securities to be redeemed, and thereupon the Trustee
shall select, by lot or in such other manner as the Trustee shall deem appropriate and which may provide for the selection for
redemption of a portion of the principal amount of any Security of such series; provided that the unredeemed portion of the principal
amount of any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination)
for such Security. In any case where more than one Security of such series is registered in the same name, the Trustee may treat
the aggregate principal amount so registered as if it were represented by one Security of such series. The Trustee shall, as soon
as practicable, notify the Company in writing of the Securities and portions of Securities so selected.
(b)
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such
Security that has been or is to be redeemed. If the Company shall so direct, Securities registered in the name of the Company,
any Affiliate or any Subsidiary thereof shall not be included in the Securities selected for redemption.
Section
4.03 Notice of Redemption.
(a)
Notice of redemption shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense
of the Company; provided, however, that the Company makes such request at least 3 days prior to the date by which such notice
of redemption must be given to Holders in accordance with this Section 4.03; provided further that, the text of such notice shall
be prepared by the Company. Any such notice shall be delivered in the manner provided in Section 16.04 not less than 30 days before
the Redemption Date unless the Trustee consents to a shorter period, to the Holders of Securities of any series to be redeemed
in whole or in part pursuant to this Article. Any notice so given shall be conclusively presumed to have been duly given, whether
or not the Holder receives such notice. Failure to give such notice, or any defect in such notice to the Holder of any Security
of a series designated for redemption, in whole or in part, shall not affect the sufficiency of any notice of redemption with
respect to the Holder of any other Security of such series.
(b)
All notices of redemption shall identify the Securities to be redeemed (including CUSIP, ISIN or other similar numbers, if available)
and shall state:
(i)
such election by the Company to redeem Securities of such series pursuant to provisions contained in this Indenture or the terms
of the Securities of such series or a supplemental indenture establishing such series, if such be the case;
(ii)
the Redemption Date;
(iii)
the Redemption Price;
(iv)
if less than all Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the Securities of such series to be redeemed;
(v)
that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed, and that,
if applicable, interest thereon shall cease to accrue on and after said date;
(vi)
the Place or Places of Payment where such Securities are to be surrendered for payment of the Redemption Price;
(vii)
that the redemption is for a sinking fund, if such is the case; and
(viii)
that the Securities must be surrendered to the Paying Agent for payment of the Redemption Price.
Section
4.04 Deposit of Redemption Price. On or prior to 11:00 a.m., ______time, on the Redemption Date for any Securities, the Company
shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 6.03) an amount of money in the Currency in which such Securities are denominated (except as provided
pursuant to Section 3.01) sufficient to pay the Redemption Price of such Securities or any portions thereof that are to be redeemed
on that date.
Section
4.05 Securities Payable on Redemption Date. Notice of redemption having been given as aforesaid, any Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption Price and from and after such date (unless the
Company shall Default in the payment of the Redemption Price) such Securities shall cease to bear interest. Upon surrender of
any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption
Price; provided, however, that (unless otherwise provided pursuant to Section 3.01) installments of interest that have a Stated
Maturity on or prior to the Redemption Date for such Securities shall be payable according to the terms of such Securities and
the provisions of Section 3.08.
If
any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal thereof and premium,
if any, thereon shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
Section
4.06 Securities Redeemed in Part. Any Security that is to be redeemed only in part shall be surrendered at the Corporate
Trust Office or such other office or agency of the Company as is specified pursuant to Section 3.01 with, if the Company, the
Registrar or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company,
the Registrar and the Trustee duly executed by the Holder thereof or his, her or its attorney duly authorized in writing, and
the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities of the same series, of like tenor and form, of any authorized denomination as requested by such Holder
in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered;
except that if a Global Security is so surrendered, the Company shall execute, and the Trustee shall authenticate and deliver
to the Depositary for such Global Security, without service charge, a new Global Security in a denomination equal to and in exchange
for the unredeemed portion of the principal of the Global Security so surrendered. In the case of a Security providing appropriate
space for such notation, at the option of the Holder thereof, the Trustee, in lieu of delivering a new Security or Securities
as aforesaid, may make a notation on such Security of the payment of the redeemed portion thereof.
ARTICLE
V
SINKING
FUNDS
Section
5.01 Applicability of Sinking Fund.
(a)
Redemption of Securities permitted or required pursuant to a sinking fund for the retirement of Securities of a series by the
terms of such series of Securities shall be made in accordance with such terms of such series of Securities and this Article,
except as otherwise specified pursuant to Section 3.01 for Securities of such series, provided, however, that if any such terms
of a series of Securities shall conflict with any provision of this Article, the terms of such series shall govern.
(b)
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 Mandatory Sinking Fund Payment may be subject to
reduction as provided in Section 5.02.
Section
5.02 Mandatory Sinking Fund Obligation. The Company may, at its option, satisfy any Mandatory Sinking Fund Payment obligation,
in whole or in part, with respect to a particular series of Securities by (a) delivering to the Trustee Securities of such series
in transferable form theretofore purchased or otherwise acquired by the Company or redeemed at the election of the Company pursuant
to Section 4.03 or (b) receiving credit for Securities of such series (not previously so credited) acquired by the Company and
theretofore delivered to the Trustee. The Trustee shall credit such Mandatory Sinking Fund Payment obligation with an amount equal
to the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such
Mandatory Sinking Fund Payment shall be reduced accordingly. If the Company shall elect to so satisfy any Mandatory Sinking Fund
Payment obligation, it shall deliver to the Trustee not less than 45 days prior to the relevant sinking fund payment date a written
notice signed on behalf of the Company by its Chairman of the Board of Directors, Chief Executive Officer, President, Chief Operating
Officer, Chief Financial Officer, one of its Vice Presidents, its Treasurer or one of its Assistant Treasurers, which shall designate
the Securities (and portions thereof, if any) so delivered or credited and which shall be accompanied by such Securities (to the
extent not theretofore delivered) in transferable form. In case of the failure of the Company, at or before the time so required,
to give such notice and deliver such Securities the Mandatory Sinking Fund Payment obligation shall be paid entirely in moneys.
Section
5.03 Optional Redemption at Sinking Fund Redemption Price. In addition to the sinking fund requirements of Section 5.02,
to the extent, if any, provided for by the terms of a particular series of Securities, the Company may, at its option, make an
Optional Sinking Fund Payment with respect to such Securities. Unless otherwise provided by such terms, (a) to the extent that
the right of the Company to make such Optional Sinking Fund Payment shall not be exercised in any year, it shall not be cumulative
or carried forward to any subsequent year, and (b) such optional payment shall operate to reduce the amount of any Mandatory Sinking
Fund Payment obligation as to Securities of the same series. If the Company intends to exercise its right to make such optional
payment in any year it shall deliver to the Trustee not less than 45 days prior to the relevant sinking fund payment date a certificate
signed by its Chairman of the Board of Directors, Chief Executive Officer, President, Chief Operating Officer, Chief Financial
Officer, one of its Vice Presidents, Treasurer or one of its Assistant Treasurers stating that the Company will exercise such
optional right, and specifying the amount which the Company will pay on or before the next succeeding sinking fund payment date.
Such certificate shall also state that no Event of Default has occurred and is continuing.
Section
5.04 Application of Sinking Fund Payment.
(a)
If the sinking fund payment or payments made in funds pursuant to either Section 5.02 or 5.03 with respect to a particular series
of Securities plus any unused balance of any preceding sinking fund payments made in funds with respect to such series shall exceed
$50,000 (or a lesser sum if the Company shall so request, or such equivalent sum for Securities denominated other than in U.S.
Dollars), it shall be applied by the Trustee on the sinking fund payment date next following the date of such payment, unless
the date of such payment shall be a sinking fund payment date, in which case such payment shall be applied on such sinking fund
payment date, to the redemption of Securities of such series at the redemption price specified pursuant to Section 4.03(b). The
Trustee shall select, in the manner provided in Section 4.02, for redemption on such sinking fund payment date, a sufficient principal
amount of Securities of such series to absorb said funds, as nearly as may be, and shall, at the expense and in the name of the
Company, thereupon cause notice of redemption of the Securities to be given in substantially the manner provided in Section 4.03(a)
for the redemption of Securities in part at the option of the Company, except that the notice of redemption shall also state that
the Securities are being redeemed for the sinking fund. Any sinking fund moneys not so applied by the Trustee to the redemption
of Securities of such series shall be added to the next sinking fund payment received in funds by the Trustee and, together with
such payment, shall be applied in accordance with the provisions of this Section 5.04. Any and all sinking fund moneys held by
the Trustee on the last sinking fund payment date with respect to Securities of such series, and not held for the payment or redemption
of particular Securities of such series, shall be applied by the Trustee to the payment of the principal of the Securities of
such series at Maturity.
(b)
On or prior to each sinking fund payment date, the Company shall pay to the Trustee a sum equal to all interest accrued to but
not including the date fixed for redemption on Securities to be redeemed on such sinking fund payment date pursuant to this Section
5.04.
(c)
The Trustee shall not redeem any Securities of a series with sinking fund moneys or mail any notice of redemption of Securities
of such series by operation of the sinking fund during the continuance of a Default in payment of interest on any Securities of
such series or of any Event of Default (other than an Event of Default occurring as a consequence of this paragraph) of which
the Trustee has actual knowledge, except that if the notice of redemption of any Securities of such series shall theretofore have
been mailed in accordance with the provisions hereof, the Trustee shall redeem such Securities if funds sufficient for that purpose
shall be deposited with the Trustee in accordance with the terms of this Article. Except as aforesaid, any moneys in the sinking
fund at the time any such Default or Event of Default shall occur and any moneys thereafter paid into the sinking fund shall,
during the continuance of such Default or Event of Default, be held as security for the payment of all the Securities of such
series; provided, however, that in case such Default or Event of Default shall have been cured or waived as provided herein, such
moneys shall thereafter be applied on the next sinking fund payment date on which such moneys are required to be applied pursuant
to the provisions of this Section 5.04.
ARTICLE
VI
PARTICULAR
COVENANTS OF THE COMPANY
The
Company hereby covenants and agrees as follows:
Section
6.01 Payments of Securities. The Company will duly and punctually pay the principal of and premium, if any, on each series
of Securities, and the interest which shall have accrued thereon, at the dates and place and in the manner provided in the Securities
and in this Indenture.
Section
6.02 Paying Agent.
(a)
The Company will maintain in each Place of Payment for any series of Securities, if any, an office or agency where Securities
may be presented or surrendered for payment, where Securities of such series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served (the
“Paying Agent”). The Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may
be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as Paying Agent to
receive all presentations, surrenders, notices and demands.
(b)
The Company may also from time to time designate different or additional offices or agencies where the Securities of any series
may be presented or surrendered for any or all such purposes (in or outside of such Place of Payment), and may from time to time
rescind any such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company
of its obligations described in the preceding paragraph. The Company will give prompt written notice to the Trustee of any such
additional designation or rescission of designation and of any change in the location of any such different or additional office
or agency. The Company shall enter into an appropriate agency agreement with any Paying Agent not a party to this Indenture. The
agreement shall implement the provisions of this Indenture that relate to such agent. The Company shall notify the Trustee of
the name and address of each such agent. The Company or any Affiliate thereof may act as Paying Agent.
Section
6.03 To Hold Payment in Trust.
(a)
If the Company or an Affiliate thereof shall at any time act as Paying Agent with respect to any series of Securities, then, on
or before the date on which the principal of and premium, if any, or interest on any of the Securities of that series by their
terms or as a result of the calling thereof for redemption shall become payable, the Company or such Affiliate will segregate
and hold in trust for the benefit of the Holders of such Securities or the Trustee a sum sufficient to pay such principal and
premium, if any, or interest which shall have so become payable until such sums shall be paid to such Holders or otherwise disposed
of as herein provided, and will notify the Trustee of its action or failure to act in that regard. Upon any proceeding under any
federal bankruptcy laws with respect to the Company or any Affiliate thereof, if the Company or such Affiliate is then acting
as Paying Agent, the Trustee shall replace the Company or such Affiliate as Paying Agent.
(b)
If the Company shall appoint, and at the time have, a Paying Agent for the payment of the principal of and premium, if any, or
interest on any series of Securities, then prior to 11:00 a.m., ______time, on the date on which the principal of and premium, if any,
or interest on any of the Securities of that series shall become payable as aforesaid, whether by their terms or as a result of
the calling thereof for redemption, the Company will deposit with such Paying Agent a sum sufficient to pay such principal and
premium, if any, or interest, such sum to be held in trust for the benefit of the Holders of such Securities or the Trustee, and
(unless such Paying Agent is the Trustee), the Company or any other obligor of such Securities will promptly notify the Trustee
of its payment or failure to make such payment.
(c)
If the Paying Agent shall be other than the Trustee, the Company will cause such Paying Agent to execute and deliver to the Trustee
an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section 6.03, that such
Paying Agent shall:
(i)
hold all moneys held by it for the payment of the principal of and premium, if any, or interest on the Securities of that series
in trust for the benefit of the Holders of such Securities until such sums shall be paid to such Holders or otherwise disposed
of as herein provided;
(ii)
give to the Trustee notice of any Default by the Company or any other obligor upon the Securities of that series in the making
of any payment of the principal of and premium, if any, or interest on the Securities of that series; and
(iii)
at any time during the continuance of any such Default, upon the written request of the Trustee, pay to the Trustee all sums so
held in trust by such Paying Agent.
(d)
Anything in this Section 6.03 to the contrary notwithstanding, the Company may at any time, for the purpose of obtaining a release,
satisfaction or discharge of this Indenture or for any other reason, pay or cause to be paid to the Trustee all sums held in trust
by the Company or by any Paying Agent other than the Trustee as required by this Section 6.03, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or such Paying Agent.
(e)
Subject to any applicable abandoned property law, any money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of and premium, if any, or interest on any Security of any series and remaining
unclaimed for two years after such principal and premium, if any, or interest has become due and payable shall be paid to the
Company upon Company Order or (if then held by the Company) shall be discharged from such trust, and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for payment of such amounts without interest thereon,
and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent before being required to make any such
repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in _________, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
Section
6.04 Merger, Consolidation and Sale of Assets. Except as otherwise provided as contemplated by Section 3.01 with respect
to any series of Securities:
(a)
The Company will not consolidate with any other entity or accept a merger of any other entity into the Company or permit the Company
to be merged into any other entity, or sell other than for cash or lease all or substantially all its assets to another entity,
or purchase all or substantially all the assets of another entity, unless (i) either the Company shall be the continuing entity,
or (ii) the successor, transferee or lessee entity (if other than the Company) shall expressly assume, by indenture supplemental
hereto, executed and delivered by such entity prior to or simultaneously with such consolidation, merger, sale or lease, the due
and punctual payment of the principal of and interest and premium, if any, on all the Securities, according to their tenor, and
the due and punctual performance and observance of all other obligations to the Holders and the Trustee under this Indenture or
under the Securities to be performed or observed by the Company. A purchase by a Subsidiary of all or substantially all of the
assets of another entity shall not be deemed to be a purchase of such assets by the Company.
(b)
Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or lease of all
or substantially all of the assets of the Company in accordance with this Section 6.04, the successor entity formed by such consolidation
or into or with which the Company is merged or to which the Company is sold or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with
the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease,
the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time
to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company,
or in its own name; and any act or proceeding by any provision of this Indenture required or permitted to be done by the Board
of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any entity that
shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease,
the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall
be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.
Section
6.05 Compliance Certificate. Except as otherwise provided as contemplated by Section 3.01 with respect to any series of
Securities, the Company shall furnish to the Trustee annually, within 120 days after the end of each fiscal year, a brief certificate
from the Chief Executive Officer, President, Chief Operating Officer, Principal Financial Officer, Principal Accounting Officer,
any Vice President or Treasurer as to his or her knowledge of the Company’s compliance with all conditions and covenants
under this Indenture (which compliance shall be determined without regard to any period of grace or requirement of notice provided
under this Indenture) and, in the event of any Default, specifying each such Default and the nature and status thereof of which
such person may have knowledge. Such certificates need not comply with Section 16.01 of this Indenture.
Section
6.06 Conditional Waiver by Holders of Securities. Anything in this Indenture to the contrary notwithstanding, the Company
may fail or omit in any particular instance to comply with a covenant or condition set forth herein with respect to any series
of Securities if the Company shall have obtained and filed with the Trustee, prior to the time of such failure or omission, evidence
(as provided in Article VIII) of the consent of the Holders of a majority in aggregate principal amount of the Securities of such
series at the time Outstanding, either waiving such compliance in such instance or generally waiving compliance with such covenant
or condition, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived,
or impair any right consequent thereon and, until such waiver shall have become effective, the obligations of the Company and
the duties of the Trustee in respect of any such covenant or condition shall remain in full force and effect.
Section
6.07 Statement by Officers as to Default. The Company shall deliver to the Trustee as soon as possible and in any event
within 30 days after the Company becomes aware of the occurrence of any Event of Default or an event which, with the giving of
notice or the lapse of time or both, would constitute an Event of Default, an Officer’s Certificate setting forth the details
of such Event of Default or Default and the action which the Company proposes to take with respect thereto.
ARTICLE
VII
REMEDIES
OF TRUSTEE AND SECURITYHOLDERS
Section
7.01 Events of Default. Except where otherwise indicated by the context or where the term is otherwise defined for a specific
purpose, the term “Event of Default” as used in this Indenture with respect to Securities of any series
shall mean one of the following described events unless it is either inapplicable to a particular series or it is specifically
deleted or modified in the manner contemplated in Section 3.01:
(a)
the failure of the Company to pay any installment of interest on any Security of such series when and as the same shall become
payable, which failure shall have continued unremedied 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;
(b)
the failure of the Company to pay the principal of (and premium, if any, on) any Security of such series, when and as the same
shall become payable, whether at Maturity as therein expressed, by call for redemption (otherwise than pursuant to a sinking fund),
by declaration as authorized by this Indenture or otherwise;
(c)
the failure of the Company to pay a sinking fund installment, if any, when and as the same shall become payable by the terms of
a Security of such series, which failure shall have continued unremedied for a period of 30 days;
(d)
the failure of the Company, subject to the provisions of Section 6.06, to perform any covenants or agreements contained in this
Indenture (including any indenture supplemental hereto pursuant to which the Securities of such series were issued as contemplated
by Section 3.01) (other than a covenant or agreement which has been expressly included in this Indenture solely for the benefit
of a series of Securities other than that series and other than a covenant or agreement a default in the performance of which
is elsewhere in this Section 7.01 specifically addressed), which failure shall not have been remedied, or without provision deemed
to be adequate for the remedying thereof having been made, for a period of 90 days after written notice shall have been given
to the Company by the Trustee or shall have been given to the Company and the Trustee by Holders of not less than a majority in
aggregate principal amount of the Securities of such series then
Outstanding,
specifying such failure, requiring the Company to remedy the same and stating that such notice is a “Notice of Default”
hereunder;
(e)
the entry by a court having jurisdiction in the premises of a decree or order for relief in respect of the Company in an involuntary
case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee
or sequestrator (or similar official) of the Company or of substantially all the property of the Company or ordering the winding-up
or liquidation of its affairs and such decree or order shall remain unstayed and in effect for a period of 90 consecutive days;
(f)
the commencement by the Company of a voluntary case under the federal bankruptcy laws, as now or hereafter constituted, or any
other applicable federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or the consent by the
Company to the entry of an order for relief in an involuntary case under any such law, or the consent by the Company to the appointment
of or taking possession by a receiver, liquidator, assignee, trustee, custodian or sequestrator (or similar official) of the Company
or of substantially all the property of the Company or the making by it of an assignment for the benefit of creditors or the admission
by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company
in furtherance of any action; or
(g)
the occurrence of any other Event of Default with respect to Securities of such series as provided in Section 3.01;
provided,
however, that no event described in clause (d) or (other than with respect to a payment default) (g) above shall constitute
an Event of Default hereunder until a Responsible Officer assigned to and working in the Trustee’s corporate trust
department has actual knowledge thereof or until a written notice of any such event is received by the Trustee at the
Corporate Trust Office, and such notice refers to the facts underlying such event, the Securities generally, the Company and
the Indenture. Notwithstanding the foregoing provisions of this Section 7.01, if the principal or any premium or interest on
any Security is payable in a Currency other than the Currency of the United States and such Currency is not available to the
Company for making payment thereof due to the imposition of exchange controls or other circumstances beyond the control of
the Company, the Company will be entitled to satisfy its obligations to Holders of the Securities by making such payment in
the Currency of the United States in an amount equal to the Currency of the United States equivalent of the amount payable in
such other Currency, as determined by the Company by reference to the noon buying rate in _________ for cable transfers for such
Currency (“Exchange Rate”), as such Exchange Rate is reported or otherwise made available by the
Federal Reserve Bank of New York on the date of such payment, or, if such rate is not then available, on the basis of the
most recently available Exchange Rate. Notwithstanding the foregoing provisions of this Section 7.01, any payment made under
such circumstances in the Currency of the United States where the required payment is in a Currency other than the Currency
of the United States will not constitute an Event of Default under this Indenture.
Section
7.02 Acceleration; Rescission and Annulment.
(a)
Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, if any one or more of the
above-described Events of Default (other than an Event of Default specified in Section 7.01(e) or 7.01(f)) shall happen with respect
to Securities of any series at the time Outstanding, then, and in each and every such case, during the continuance of any such
Event of Default, the Trustee or the Holders of not less than a majority in principal amount of the Securities of such series
then Outstanding may declare the principal (or, if the Securities of that series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that series) of and all accrued but unpaid interest on all
the Securities of such series then Outstanding to be due and payable immediately by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately
due and payable. If an Event of Default specified in Section 7.01(e) or 7.01(f) occurs and is continuing, then in every such case,
the principal amount of all of the Securities of that series then Outstanding shall automatically, and without any declaration
or any other action on the part of the Trustee or any Holder, become due and payable immediately. Upon payment of such amounts
in the Currency in which such Securities are denominated (subject to Section 7.01 and except as otherwise provided pursuant to
Section 3.01), all obligations of the Company in respect of the payment of principal of and interest on the Securities of such
series shall terminate.
(b)
The provisions of Section 7.02(a), however, are subject to the condition that, at any time after the principal of all the Securities
of such series, to which any one or more of the above-described Events of Default is applicable, shall have been so declared to
be due and payable, and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter
provided in this Article, the Event of Default giving rise to such declaration of acceleration shall, without further act, be
deemed to have been waived, and such declaration and its consequences shall, without further act, be deemed to have been rescinded
and annulled, if:
(i)
the Company has paid or deposited with the Trustee or Paying Agent a sum in the Currency in which such Securities are denominated
(subject to Section 7.01 and except as otherwise provided pursuant to Section 3.01) sufficient to pay
(A)
all amounts owing the Trustee and any predecessor trustee hereunder under Section 11.01(a) (provided, however, that all sums payable
under this clause (A) shall be paid in U.S. Dollars);
(B)
all arrears of interest, if any, upon all the Securities of such series (with interest, to the extent that interest thereon shall
be legally enforceable, on any overdue installment of interest at the rate borne by such Securities at the rate or rates prescribed
therefor in such Securities); and
(C)
the principal of and premium, if any, on any Securities of such series that have become due otherwise than by such declaration
of acceleration and interest thereon; and
(ii)
every other Default and Event of Default with respect to Securities of that series, other than the non-payment of the principal
of Securities of that series which have become due solely by such declaration of acceleration, has been cured or waived as provided
in Section 7.06.
(c)
No such rescission shall affect any subsequent default or impair any right consequent thereon.
(d)
For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been
accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such
declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed,
for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration,
and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with
interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount
Securities.
Section
7.03 Other Remedies. If the Company shall fail for a period of 30 days to pay any installment of interest on the Securities
of any series or shall fail to pay the principal of and premium, if any, on any of the Securities of such series when and as the
same shall become due and payable, whether at Maturity, or by call for redemption (other than pursuant to the sinking fund), by
declaration as authorized by this Indenture, or otherwise, or shall fail for a period of 30 days to make any required sinking
fund payment as to a series of Securities, then, upon demand of the Trustee, the Company will pay to the Paying Agent for the
benefit of the Holders of Securities of such series then Outstanding the whole amount which then shall have become due and payable
on all the Securities of such series, with interest on the overdue principal and premium, if any, and (so far as the same may
be legally enforceable) on the overdue installments of interest at the rate borne by the Securities of such series, and all amounts
owing the Trustee and any predecessor trustee hereunder under Section 11.01(a).
In
case the Company shall fail forthwith to pay such amounts 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 proceeding 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 any other obligor upon the Securities of such series, and collect
the moneys adjudged or decreed to be payable out of the property of the Company or any other obligor upon the Securities of
such series, wherever situated, in the manner provided by law. Every recovery of judgment in any such action or other
proceeding, subject to the payment to the Trustee of all amounts owing the Trustee and any predecessor trustee hereunder
under Section 11.01(a), shall be for the ratable benefit of the Holders of such series of Securities which shall be the
subject of such action or proceeding. All rights of action upon or under any of the Securities or this Indenture may be
enforced by the Trustee without the
possession of any of the Securities and without the production of any thereof at any
trial or any proceeding relative thereto.
Section
7.04 Trustee as Attorney-in-Fact. The Trustee is hereby appointed, and each and every Holder of the Securities, by receiving
and holding the same, shall be conclusively deemed to have appointed the Trustee, the true and lawful attorney-in-fact of such
Holder, with authority to make or file (whether or not the Company shall be in Default in respect of the payment of the principal
of, or interest on, any of the Securities), in its own name and as trustee of an express trust or otherwise as it shall deem advisable,
in any receivership, insolvency, liquidation, bankruptcy, reorganization or other judicial proceeding relative to the Company
or any other obligor upon the Securities or to their respective creditors or property, any and all claims, proofs of claim, proofs
of debt, petitions, consents, other papers and documents and amendments of any thereof, as may be necessary or advisable in order
to have the claims of the Trustee and any predecessor trustee hereunder and of the Holders of the Securities allowed in any such
proceeding and to collect and receive any moneys or other property payable or deliverable on any such claim, and to execute and
deliver any and all other papers and documents and to do and perform any and all other acts and things, as it may deem necessary
or advisable in order to enforce in any such proceeding any of the claims of the Trustee and any predecessor trustee hereunder
and of any of such Holders in respect of any of the Securities; and any receiver, assignee, trustee, custodian or debtor in any
such proceeding is hereby authorized, and each and every taker or Holder of the Securities, by receiving and holding the same,
shall be conclusively deemed to have authorized any such receiver, assignee, trustee, custodian or debtor, to make any such payment
or delivery only to or on the order of the Trustee, and to pay to the Trustee any amount due it and any predecessor trustee hereunder
under Section 11.01(a); provided, however, that nothing herein contained shall be deemed to authorize or empower the Trustee to
consent to or accept or adopt, on behalf of any Holder of Securities, any plan of reorganization or readjustment affecting the
Securities or the rights of any Holder thereof, or to authorize or empower the Trustee to vote in respect of the claim of any
Holder of any Securities in any such proceeding.
Section
7.05 Priorities. Any moneys or properties collected by the Trustee with respect to a series of Securities under this Article
VII shall be applied in the order following, at the date or dates fixed by the Trustee for the distribution of such moneys or
properties and, in the case of the distribution of such moneys or properties on account of the Securities of any series, upon
presentation of the Securities of such series, and stamping thereon the payment, if only partially paid, and upon surrender thereof,
if fully paid:
First:
To the payment of all amounts due to the Trustee and any predecessor trustee hereunder under Section 11.01(a).
Second:
In case the principal of the Outstanding Securities of such series shall not have become due and be unpaid, to the payment of
interest on the Securities of such series, in the chronological order of the Maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at the
rate borne by such Securities, such payments to be made ratably to the Persons entitled thereto.
Third:
In case the principal of the Outstanding Securities of such series shall have become due, by declaration or otherwise, to the
payment of the whole amount then owing and unpaid upon the Securities of such series for principal and premium, if any, and interest,
with interest on the overdue principal and premium, if any, and (to the extent that such interest has been collected by the Trustee)
upon overdue installments of interest at the rate borne by the Securities of such series, and in case such moneys shall be insufficient
to pay in full the whole amounts so due and unpaid upon the Securities of such series, then to the payment of such principal and
premium, if any, and interest without preference or priority of principal and premium, if any, over interest, or of interest over
principal and premium, if any, or of any installment of interest over any other installment of interest, or of any Security of
such series over any other Security of such series, ratably to the aggregate of such principal and premium, if any, and accrued
and unpaid interest.
Any
surplus then remaining shall be paid to the Company or as directed by a court of competent jurisdiction.
Section
7.06 Control by Securityholders; Waiver of Past Defaults. The Holders of a majority in principal amount of the Securities
of any series at the time outstanding may direct the time, method and place of conducting any proceeding for any remedy available
to the Trustee hereunder, or of exercising any trust or power hereby conferred upon the Trustee with respect to the Securities
of such series, provided, however, that, subject to the provisions of Sections 11.01 and 11.02, the Trustee shall have the right
to decline to follow any such direction if the Trustee being advised by counsel determines in good faith that the action so directed
may not lawfully be taken or would be unduly prejudicial to Holders not joining in such direction or would involve the Trustee
in personal liability. Prior to any declaration accelerating the Maturity of the Securities of any series, the Holders of a majority
in aggregate principal amount of such series of Securities at the time Outstanding may on behalf of the Holders of all of the
Securities of such series waive any past Default or Event of Default hereunder and its consequences except a Default in the payment
of interest or any premium on or the principal of the Securities of such series. Upon any such waiver 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 Event of Default or impair any right consequent thereon.
Whenever any Default or Event of Default hereunder shall have been waived as permitted by this Section 7.06, said Default or Event
of Default shall for all purposes of the Securities of such series and this Indenture be deemed to have been cured and to be not
continuing.
Section
7.07 Limitation on Suits. No Holder of any Security of any series shall have any right to institute any action, suit or
proceeding at law or in equity for the execution of any trust hereunder or for the appointment of a receiver or for any other
remedy hereunder, in each case with respect to an Event of Default with respect to such series of Securities, unless such Holder
previously shall have given to the Trustee written notice of one or more of the Events of Default herein specified with respect
to such series of Securities, and unless also the Holders of not less than a majority in principal amount of the Securities of
such series then Outstanding shall have requested the Trustee in writing to take action in respect of the matter complained of,
and unless also there shall have been offered to the Trustee security and indemnity satisfactory to it against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days after receipt of such notification, request and
offer of indemnity, shall have neglected or refused to institute any such action, suit or proceeding; and such notification, request
and offer of indemnity are hereby declared in every such case to be conditions precedent to any such action, suit or proceeding
by any Holder of any Security of such series; it being understood and intended that no one or more of the Holders of Securities
of such series shall have any right in any manner whatsoever by his, her, its or their action to enforce any right hereunder,
except in the manner herein provided, and that every action, suit or proceeding at law or in equity shall be instituted, had and
maintained in the manner herein provided and for the equal benefit of all Holders of the Outstanding Securities of such series;
provided, however, that nothing in this Indenture or in the Securities of such series shall affect or impair the obligation of
the Company, which is absolute and unconditional, to pay the principal of, premium, if any, and interest on the Securities of
such series to the respective Holders of such Securities at the respective due dates in such Securities stated, or affect or impair
the right, which is also absolute and unconditional, of such Holders to institute suit to enforce the payment thereof.
Section
7.08 Undertaking for Costs. All parties to this Indenture and each Holder of any Security, by such Holder’s acceptance
thereof, shall be deemed to have agreed that any court may in its discretion require, in any action, suit or proceeding for the
enforcement of any right or remedy under this Indenture, or in any action, suit or proceeding against the Trustee for any action
taken or omitted by it as Trustee, the filing by any party litigant in such action, suit or proceeding of an undertaking to pay
the costs of such action, suit or proceeding, and that such court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees and expenses, against any party litigant in such action, suit or proceeding, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; provided, however, that the provisions of this Section 7.08
shall not apply to any action, suit or proceeding instituted by the Trustee, to any action, suit or proceeding instituted by any
one or more Holders of Securities holding in the aggregate more than 10% in principal amount of the Securities of any series Outstanding,
or to any action, suit or proceeding instituted by any Holder of Securities of any series for the enforcement of the payment of
the principal of or premium, if any, or the interest on, any of the Securities of such series, on or after the respective due
dates expressed in such Securities.
Section
7.09 Remedies Cumulative. No remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities of
any series is intended to be exclusive of any other remedy or remedies, and each and every remedy shall be cumulative and shall
be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. No delay
or omission of the Trustee or of any Holder of the Securities of any series to exercise any right or power accruing upon any Default
or Event of Default shall impair any such right or power or shall be construed to be a waiver of any such Default or Event of
Default or an acquiescence therein; and every power and remedy given by this Article VII to the Trustee and to the Holders of
Securities of any series, respectively, may be exercised from time to time and as often as may be deemed expedient by the Trustee
or by the Holders of Securities of such series, as the case may be. In case the Trustee or any Holder of Securities of any series
shall have proceeded to enforce any right under this Indenture and the proceedings for the enforcement thereof shall have been
discontinued or abandoned because of waiver or for any other reason or shall have been adjudicated adversely to the Trustee or
to such Holder of Securities, then and in every such case the Company, the Trustee and the Holders of the Securities of such series
shall severally and respectively be restored to their former positions and rights hereunder, and thereafter all rights, remedies
and powers of the Trustee and the Holders of the Securities of such series shall continue as though no such proceedings had been
taken, except as to any matters so waived or adjudicated.
ARTICLE
VIII
CONCERNING
THE SECURITYHOLDERS
Section
8.01 Evidence of Action of Securityholders. Whenever in this Indenture it is provided that the Holders of a specified percentage
or a majority in aggregate principal amount of the Securities or of any series of Securities 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 specified percentage or majority have joined therein may be evidenced
by (a) any instrument or any number of instruments of similar tenor executed by Securityholders in person, by an agent or by a
proxy appointed in writing, including through an electronic system for tabulating consents operated by the Depositary for such
series or otherwise (such action becoming effective, except as herein otherwise expressly provided, when such instruments or evidence
of electronic consents are delivered to the Trustee and, where it is hereby expressly required, to the Company), or (b) by the
record of the Holders of Securities voting in favor thereof at any meeting of Securityholders duly called and held in accordance
with the provisions of Article IX, or (c) by a combination of such instrument or instruments and any such record of such a meeting
of Securityholders.
Section
8.02 Proof of Execution or Holding of Securities. Proof of the execution of any instrument by a Securityholder or his,
her or its agent or proxy and proof of the holding by any Person of any of the Securities shall be sufficient if made in the following
manner:
(a)
The fact and date of the execution by any Person of any such instrument may be proved (i) by the certificate of any notary public
or other officer in any jurisdiction who, by the laws thereof, has power to take acknowledgments or proof of deeds to be recorded
within such jurisdiction, that the Person who signed such instrument did acknowledge before such notary public or other officer
the execution thereof, (ii) by the affidavit of a witness of such execution sworn to before any such notary or other officer or
(iii) in such other reasonable manner acceptable to the Trustee. Where such execution is by a Person acting in other than his
or her individual capacity, such certificate or affidavit shall also constitute sufficient proof of his or her authority.
(b)
The ownership of Securities of any series shall be proved by the Register of such Securities or by a certificate of the Registrar
for such series.
(c)
The record of any Holders’ meeting shall be proved in the manner provided in Section 9.06.
(d)
The Trustee may require such additional proof of any matter referred to in this Section 8.02 as it shall deem appropriate or necessary,
so long as the request is a reasonable one.
(e)
If the Company shall solicit from the Holders of Securities of any series any action, the Company may, at its option fix in advance
a record date for the determination of Holders of Securities entitled to take such action, but the Company shall have no obligation
to do so. Any such record date shall be fixed at the Company’s discretion. If such a record date is fixed, such action may
be sought or given before or after the record date, but only the Holders of Securities of record at the close of business on such
record date shall be deemed to be Holders of Securities for the purpose of determining whether Holders of the requisite proportion
of Outstanding Securities of such series have authorized or agreed or consented to such action, and for that purpose the Outstanding
Securities of such series shall be computed as of such record date.
Section
8.03 Persons Deemed Owners.
(a)
The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name any Security is registered
as the owner of such Security for the purpose of receiving payment of principal of and premium, if any, and (subject to Section
3.08) interest, if any, on, such Security and for all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary. All
payments made to any Holder, or upon his, her or its order, shall be valid, and, to the extent of the sum or sums paid, effectual
to satisfy and discharge the liability for moneys payable upon such Security.
(b)
None of the Company, the Trustee, any Paying Agent or the Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership interests in a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership interests.
Section
8.04 Effect of Consents. After an amendment, supplement, waiver or other action becomes effective as to any series of Securities,
a consent to it by a Holder of such series of Securities is a continuing consent conclusive and binding upon such Holder and every
subsequent Holder of the same Securities or portion thereof, and of any Security issued upon the transfer thereof or in exchange
therefor or in place thereof, even if notation of the consent is not made on any such Security. An amendment, supplement or waiver
becomes effective in accordance with its terms and thereafter binds every Holder.
ARTICLE
IX
SECURITYHOLDERS’
MEETINGS
Section
9.01 Purposes of Meetings. A meeting of Securityholders of any or all series may be called at any time and from time to
time pursuant to the provisions of this Article IX for any of the following purposes:
(a)
to give any notice to the Company or to the Trustee, or to give any directions to the Trustee, or to consent to the waiving of
any Default or Event of Default hereunder and its consequences, or to take any other action authorized to be taken by Securityholders
pursuant to any of the provisions of Article VIII;
(b)
to remove the Trustee and nominate a successor trustee pursuant to the provisions of Article XI;
(c)
to consent to the execution of an Indenture or of indentures supplemental hereto pursuant to the provisions of Section 14.02;
or
(d)
to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of
the Securities of any one or more or all series, as the case may be, under any other provision of this Indenture or under applicable
law.
Section
9.02 Call of Meetings by Trustee. The Trustee may at any time call a meeting of all Securityholders of all series that
may be affected by the action proposed to be taken, to take any action specified in Section 9.01, to be held at such time and
at such place in New York, New York or at such location otherwise specified by the Trustee. Notice of every meeting of the Securityholders
of a series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such
meeting, shall be mailed to Holders of Securities of such series at their addresses as they shall appear on the Register of the
Company. Such notice shall be mailed not less than 20 nor more than 180 days prior to the date fixed for the meeting.
Section
9.03 Call of Meetings by Company or Securityholders. In case at any time the Company or the Holders of at least 10% in
aggregate principal amount of the Securities of a series (or of all series, as the case may be) then Outstanding that may be affected
by the action proposed to be taken, shall have requested the Trustee to call a meeting of Securityholders of such series (or of
all series), by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee
shall not have mailed the notice of such meeting within 20 days after receipt of such request, then the Company or such Securityholders
may determine the time and the place for such meeting and may call such meeting to take any action authorized in Section 9.01,
by mailing notice thereof as provided in Section 9.02.
Section
9.04 Qualifications for Voting. To be entitled to vote at any meeting of Securityholders, a Person shall (a) be a Holder
of one or more Securities affected by the action proposed to be taken at the meeting or (b) be a Person appointed by an instrument
in writing as proxy by a Holder of one or more such Securities. The only Persons who shall be entitled to be present or to speak
at any meeting of Securityholders shall be the Persons entitled to vote at such meeting and their counsel and any representatives
of the Trustee and its counsel and any representatives of the Company and its counsel.
Section
9.05 Regulation of Meetings.
(a)
Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable
for any meeting of Securityholders, 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 fit.
(b)
The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Securityholders as provided in Section 9.03, in which case the Company or the Securityholders calling
the meeting, as the case may be, shall in like manner appoint a temporary chair. A permanent chairman and a permanent secretary
of the meeting shall be elected by majority vote of the meeting.
(c)
At any meeting of Securityholders of a series, each Securityholder of such series of such Securityholder’s proxy shall be
entitled to one vote for each $1,000 principal amount of Securities of such series Outstanding held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any Security 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 other than by virtue
of Securities of such series held by him or her or instruments in writing as aforesaid duly designating him or her as the Person
to vote on behalf of other Securityholders. At any meeting of the Securityholders duly called pursuant to the provisions of Section
9.02 or 9.03 the presence of Persons holding or representing Securities in an aggregate principal amount sufficient to take action
upon the business for the transaction of which such meeting was called shall be necessary to constitute a quorum, and any such
meeting may be adjourned from time to time by a majority of those present, whether or not constituting a quorum, and the meeting
may be held as so adjourned without further notice. 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 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 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 9.02 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.
Section
9.06 Voting. The vote upon any resolution submitted to any meeting of Securityholders of a 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 of the 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
in duplicate of the proceedings of each meeting of Securityholders 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 mailed as provided in Section 9.02. The record shall show the principal amounts of the Securities voting in favor of or against
any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting
and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee.
Any
record so signed and verified shall be conclusive evidence of the matters therein stated.
Section
9.07 No Delay of Rights by Meeting. Nothing contained in this Article IX shall be deemed or construed to authorize or permit,
by reason of any call of a meeting of Securityholders of any series or any rights expressly or impliedly conferred hereunder to
make such call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or to
the Securityholders of such series under any of the provisions of this Indenture or of the Securities of such series.
ARTICLE
X
REPORTS
BY THE COMPANY AND THE TRUSTEE AND
SECURITYHOLDERS’
LISTS
Section
10.01 Reports by Trustee.
(a)
So long as any Securities are outstanding, the Trustee shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided therein.
(b)
The Trustee shall, at the time of the transmission to the Holders of Securities of any report pursuant to the provisions of this
Section 10.01, file a copy of such report with each stock exchange upon which the Securities are listed, if any, and also with
the SEC in respect of a Security listed and registered on a national securities exchange, if any. The Company agrees to notify
the Trustee when, as and if the Securities become listed on any stock exchange.
The
Company will reimburse the Trustee for all expenses incurred in the preparation and transmission of any report pursuant to the
provisions of this Section 10.01 and of Section 10.02.
Section
10.02 Reports by the Company. The Company shall file with the Trustee and the SEC, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided in the Trust Indenture Act; provided that, unless available on EDGAR, any such information, documents or
reports required to be filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee
within 30 days after the same is filed with the SEC; and provided further, that the filing of the reports specified in Section
13 or 15(d) of the Exchange Act by an entity that is the direct or indirect parent of the Company will satisfy the requirements
of this Section 10.02 so long as such entity is an obligor or guarantor on the Securities; and provided further that the reports
of such entity will not be required to include condensed consolidating financial information for the Company in a footnote to
the financial statements of such entity. Notwithstanding the foregoing, the Company shall not be required to deliver to the Trustee
any information or documents for which the Company has followed the SEC’s procedures to obtain confidential treatment or
has otherwise received confidential treatment by the SEC.
Section
10.03 Securityholders’ Lists. The Company covenants and agrees that it will furnish or cause to be furnished to the
Trustee:
(a)
semi-annually, within 15 days after each Record Date, but in any event not less frequently than semi-annually, a list in such
form as the Trustee may reasonably require of the names and addresses of the Holders of Securities to which such Record Date applies,
as of such Record Date, and
(b)
at such other times as the Trustee may request in writing, within 30 days after 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 so long as the Trustee shall be the Registrar, such lists shall not be required to be furnished.
ARTICLE
XI
CONCERNING
THE TRUSTEE
Section
11.01 Rights of Trustees; Compensation and Indemnity. The Trustee accepts the trusts created by this Indenture upon the
terms and conditions hereof, including the following, to all of which the parties hereto and the Holders from time to time of
the Securities agree:
(a)
The Trustee shall be entitled to such compensation as the Company and the Trustee shall from time to time agree in writing for
all services rendered by it hereunder (including in any agent capacity in which it acts). The compensation of the Trustee shall
not be limited by any provision of law in regard to the compensation of a trustee of an express trust. The Company shall reimburse
the Trustee promptly upon its request for all reasonable out-of-pocket expenses, disbursements and advances incurred or made by
the Trustee (including the reasonable expenses and disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence, bad faith or willful misconduct.
The
Company also agrees to indemnify each of the Trustee and any predecessor Trustee hereunder for, and to hold it harmless against,
any and all loss, liability, damage, claim, or expense incurred without its own negligence, bad faith or willful misconduct, arising
out of or in connection with the acceptance or administration of the trust or trusts hereunder and the performance of its duties
(including in any agent capacity in which it acts), as well as the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or duties hereunder, except those attributable to
its negligence, willful misconduct or bad faith. The Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. The Company shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have one separate
counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement
made without its consent, which consent shall not be unreasonably withheld.
As
security for the performance of the obligations of the Company under this Section 11.01(a), the Trustee shall have a lien upon
all property and funds held or collected by the Trustee as such, except funds held in trust by the Trustee to pay principal of
and interest on any Securities. Notwithstanding any provisions of this Indenture to the contrary, the obligations of the Company
to compensate and indemnify the Trustee under this Section 11.01(a) shall survive the resignation or removal of the Trustee and
any satisfaction and discharge under Article XII. When the Trustee incurs expenses or renders services after an Event of Default
specified in clause (e) or (f) of Section 7.01 occurs, the expenses and compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy, insolvency or similar laws.
(b)
The Trustee may execute any of the trusts or powers hereof and perform any duty hereunder either directly or by its agents and
attorneys and shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due
care by it hereunder.
(c)
The Trustee shall not be responsible in any manner whatsoever for the correctness of the recitals herein or in the Securities
(except its certificates of authentication thereon) contained, all of which are made solely by the Company; and the Trustee shall
not be responsible or accountable in any manner whatsoever for or with respect to the validity or execution or sufficiency of
this Indenture or of the Securities (except its certificates of authentication thereon), and the Trustee makes no representation
with respect thereto, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate
the Securities and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility on Form
T-1 supplied to the Company are true and accurate, subject to the qualifications set forth therein. The Trustee shall not be accountable
for the use or application by the Company of any Securities, or the proceeds of any Securities, authenticated and delivered by
the Trustee in conformity with the provisions of this Indenture.
(d)
The Trustee may consult with counsel of its selection, and, to the extent permitted by Section 11.02, any Opinion of Counsel shall
be full and complete authorization and protection in respect of any action taken or suffered by the Trustee hereunder in good
faith and in accordance with such Opinion of Counsel.
(e)
The Trustee, to the extent permitted by Section 11.02, may rely upon the certificate of the Secretary or one of the Assistant
Secretaries of the Company as to the adoption of any Board Resolution or resolution of the stockholders of the Company, and any
request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by, and whenever in the administration
of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting
any action hereunder, the Trustee may rely upon, an Officer’s Certificate of the Company (unless other evidence in respect
thereof be herein specifically prescribed).
(f)
Subject to Section 11.04, the Trustee or any agent of the Trustee, in its individual or any other capacity, may become the owner
or pledgee of Securities and, subject to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise deal with the Company
with the same rights it would have had if it were not the Trustee or such agent.
(g)
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with
the Company.
(h)
Any action taken by the Trustee pursuant to any provision hereof at the request or with the consent of any Person who at the time
is the Holder of any Security shall be conclusive and binding in respect of such Security upon all future Holders thereof or of
any Security or Securities which may be issued for or in lieu thereof in whole or in part, whether or not such Security shall
have noted thereon the fact that such request or consent had been made or given.
(i)
Subject to the provisions of Section 11.02, the Trustee may conclusively rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or
parties.
(j)
Subject to the provisions of Section 11.02, the Trustee shall not be under any 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 Holders of the Securities, pursuant to any provision
of this Indenture, unless one or more of the Holders of the Securities shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which may be incurred by it therein or thereby.
(k)
Subject to the provisions of Section 11.02, the Trustee shall not be liable for any action taken or omitted by it in good faith
and believed by it to be authorized or within its discretion or within the rights or powers conferred upon it by this Indenture.
(l)
Subject to the provisions of Section 11.02, the Trustee shall not be deemed to have knowledge or notice of any Default or Event
of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless the Holders of not less than 25%
of the Outstanding Securities notify the Trustee thereof.
(m)
Subject to the provisions of the first paragraph of Section 11.02, the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of Indebtedness or other paper or document, but the Trustee, may, but shall
not be required to, make further inquiry or investigation into such facts or matters as it may see fit.
(n)
The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to
be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder.
Section
11.02 Duties of Trustee.
(a)
If one or more of the Events of Default specified in Section 7.01 with respect to the Securities of any series shall have happened,
then, during the continuance thereof, the Trustee shall, with respect to such Securities, exercise such of the rights and powers
vested in it by this Indenture, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise
or use under the circumstances in the conduct of such person’s own affairs.
(b)
None of the provisions of this Indenture shall be construed as relieving the Trustee from liability for its own negligent action,
its own negligent action, negligent failure to act, or its own willful misconduct, except that, anything in this Indenture contained
to the contrary notwithstanding,
(i)
unless and until an Event of Default specified in Section 7.01 with respect to the Securities of any series shall have happened
which at the time is continuing,
(A)
the Trustee undertakes to perform such duties and only such duties with respect to the Securities of that series as are specifically
set out in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee, whose
duties and obligations shall be determined solely by the express provisions of this Indenture; and
(B)
the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, in
the absence of bad faith on the part of the Trustee, upon certificates and opinions furnished to it pursuant to the express provisions
of this Indenture; but in the case of any such certificates or opinions which, by the provisions of this Indenture, are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or
other facts, statements, opinions or conclusions stated therein);
(ii)
the Trustee shall not be liable to any Holder of Securities or to any other Person for any error of judgment made in good faith
by a Responsible Officer or Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(iii)
the Trustee shall not be liable to any Holder of Securities or to any other Person with respect to any action taken or omitted
to be taken by it in good faith, in accordance with the direction of Securityholders given as provided in Section 7.06, relating
to the time, method and place of conducting any proceeding for any remedy available to it or exercising any trust or power conferred
upon it by this Indenture.
(c)
None of the provisions of this Indenture shall require the Trustee to expend or risk its own funds or otherwise to incur any financial
liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(d)
Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of this Section 11.02.
Section
11.03 Notice of Defaults. Within 90 days after the occurrence thereof, and if known to the Trustee, the Trustee shall give
to the Holders of the Securities of a series notice of each Default or Event of Default with respect to the Securities of such
series known to the Trustee, by transmitting such notice to Holders at their addresses as the same shall then appear on the Register
of the Company, unless such Default shall have been cured or waived before the giving of such notice (the term “Default”
being hereby defined to be the events specified in Section 7.01, which are, or after notice or lapse of time or both would become,
Events of Default as defined in said Section). Except in the case of a Default or Event of Default in payment of the principal
of, premium, if any, or interest on any of the Securities of such series when and as the same shall become payable, or to make
any sinking fund payment as to Securities of the same series, the Trustee shall be protected in withholding such notice, if and
so long as a Responsible Officer or Responsible Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of the Securities of such series.
Section
11.04 Eligibility; Disqualification.
(a)
The Trustee shall at all times satisfy the requirements of TIA Section 310(a). The Trustee shall have a combined capital and surplus
of at least $50 million as set forth in its most recent published annual report of condition, and shall have a Corporate Trust
Office. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 11.04, it shall
resign immediately in the manner and with the effect hereinafter specified in this Article.
(b)
The Trustee shall comply with TIA Section 310(b); provided, however, that there shall be excluded from the operation of TIA Section
310(b)(i) any indenture or indentures under which other securities or certificates of interest or participation in other securities
of the Company are outstanding if the requirements for such exclusion set forth in TIA Section 310(b)(i) are met. If the Trustee
has or shall acquire a conflicting interest within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee shall
either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture. If Section 310(b) of the Trust Indenture Act is amended any time after the date of this Indenture
to change the circumstances under which a Trustee shall be deemed to have a conflicting interest with respect to the Securities
of any series or to change any of the definitions in connection therewith, this Section 11.04 shall be automatically amended to
incorporate such changes.
Section
11.05 Registration and Notice; Removal. The Trustee, or any successor to it hereafter appointed, may at any time resign
and be discharged of the trusts hereby created with respect to any one or more or all series of Securities by giving to the Company
notice in writing. Such resignation shall take effect upon the appointment of a successor Trustee and the acceptance of such appointment
by such successor Trustee. Any Trustee hereunder may be removed with respect to any series of Securities at any time by the filing
with such Trustee and the delivery to the Company of an instrument or instruments in writing signed by the Holders of a majority
in principal amount of the Securities of such series then Outstanding, specifying such removal and the date when it shall become
effective.
If
at any time:
(1)
the Trustee shall fail to comply with the provisions of TIA Section 310(b) after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security for at least six months, or
(2)
the Trustee shall cease to be eligible under Section 11.04 and shall fail to resign after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Security for at least six months, or
(3)
the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then, in any such case, (i) the Company by written notice to the Trustee
may remove the Trustee and appoint a successor Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e),
any Securityholder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities
and the appointment of a successor Trustee or Trustees.
Upon
its resignation or removal, any Trustee shall be entitled to the payment of reasonable compensation for the services rendered
hereunder by such Trustee and to the payment of all reasonable expenses incurred hereunder and all moneys then due to it hereunder.
The Trustee’s rights to indemnification provided in Section 11.01(a) shall survive its resignation or removal.
Section
11.06 Successor Trustee by Appointment.
(a)
In case at any time the Trustee shall resign, or shall be removed (unless the Trustee shall be removed as provided in Section
11.04(b), in which event the vacancy shall be filled as provided in said subdivision), or shall become incapable of acting, or
shall be adjudged bankrupt or insolvent, or if a receiver of the Trustee or of its property shall be appointed, or if 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 with respect to the Securities of one or more series, a successor Trustee with respect to the Securities of that
or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any series)
may be appointed by the Holders of a majority in principal amount of the Securities of that or those series then Outstanding,
by an instrument or instruments in writing signed in duplicate by such Holders and filed, one original thereof with the Company
and the other with the successor Trustee; but, until a successor Trustee shall have been so appointed by the Holders of Securities
of that or those series as herein authorized, the Company, or, in case all or substantially all the assets of the Company shall
be in the possession of one or more custodians or receivers lawfully appointed, or of trustees in bankruptcy or reorganization
proceedings (including a trustee or trustees appointed under the provisions of the federal bankruptcy laws, as now or hereafter
constituted), or of assignees for the benefit of creditors, such receivers, custodians, trustees or assignees, as the case may
be, by an instrument in writing, shall appoint a successor Trustee with respect to the Securities of such series. Subject to the
provisions of Sections 11.04 and 11.05, upon the appointment as aforesaid of a successor Trustee with respect to the Securities
of any series, the Trustee with respect to the Securities of such series shall cease to be Trustee hereunder. After any such appointment
other than by the Holders of Securities of that or those series, the Person making such appointment shall forthwith cause notice
thereof to be mailed to the Holders of Securities of such series at their addresses as the same shall then appear on the Register
of the Company but any successor Trustee with respect to the Securities of such series so appointed shall, immediately and without
further act, be superseded by a successor Trustee appointed by the Holders of Securities of such series in the manner above prescribed,
if such appointment be made prior to the expiration of one year from the date of the mailing of such notice by the Company, or
by such receivers, trustees or assignees.
(b)
If any Trustee with respect to the Securities of one or more series shall resign or be removed and a successor Trustee shall not
have been appointed by the Company or by the Holders of the Securities of such series or, if any successor Trustee so appointed
shall not have accepted its appointment within 30 days after such appointment shall have been made, the resigning Trustee at the
expense of the Company may apply to any court of competent jurisdiction for the appointment of a successor Trustee. If in any
other case a successor Trustee shall not be appointed pursuant to the foregoing provisions of this Section 11.06 within three
months after such appointment might have been made hereunder, the Holder of any Security of the applicable series or any retiring
Trustee at the expense of the Company may apply to any court of competent jurisdiction to appoint a successor Trustee. Such court
may thereupon, in any such case, after such notice, if any, as such court may deem proper and prescribe, appoint a successor Trustee.
(c)
Any successor Trustee appointed hereunder with respect to the Securities of one or more series shall execute, acknowledge and
deliver to its predecessor Trustee and to the Company, or to the receivers, trustees, assignees or court appointing it, as the
case may be, an instrument accepting such appointment hereunder, and thereupon such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the authority, rights, powers, trusts, immunities, duties and obligations with
respect to such series of such predecessor Trustee with like effect as if originally named as Trustee hereunder, and such predecessor
Trustee, upon payment of its charges and disbursements then unpaid, shall thereupon become obligated to pay over, and such successor
Trustee shall be entitled to receive, all moneys and properties held by such predecessor Trustee as Trustee hereunder, subject
nevertheless to its lien provided for in Section 11.01(a). Nevertheless, on the written request of the Company or of the successor
Trustee or of the Holders of at least 10% in principal amount of the Securities of such series then Outstanding, such predecessor
Trustee, upon payment of its said charges and disbursements, shall execute and deliver an instrument transferring to such successor
Trustee upon the trusts herein expressed all the rights, powers and trusts of such predecessor Trustee and shall assign, transfer
and deliver to the successor Trustee all moneys and properties held by such predecessor Trustee, subject nevertheless to its lien
provided for in Section 11.01(a); and, upon request of any such successor Trustee and the Company shall make, execute, acknowledge
and deliver any and all instruments in writing for more fully and effectually vesting in and confirming to such successor Trustee
all such authority, rights, powers, trusts, immunities, duties and obligations.
Section
11.07 Successor Trustee by Merger. Any Person into which the Trustee or any successor to it in the trusts created by this
Indenture shall be merged or converted, or any Person with which it or any successor to it shall be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Trustee or any such successor to it shall be a party, or any
Person to which the Trustee or any successor to it shall sell or otherwise transfer all or substantially all of the corporate
trust business of the Trustee, shall be the successor Trustee under this Indenture without the execution or filing of any paper
or any further act on the part of any of the parties hereto; provided that such Person shall be otherwise qualified and eligible
under this Article. In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture with
respect to one or more series of Securities, any of such Securities shall have been authenticated but not delivered by the Trustee
then in office, any successor to such Trustee may adopt the certificate of authentication of any predecessor Trustee, and deliver
such Securities so authenticated; and in case at that time any of the Securities shall not have been authenticated, any successor
to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor
Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Securities or in this Indenture
provided that the certificate of the Trustee shall have; provided, however, that the right to adopt the certificate of authentication
of any predecessor Trustee or authenticate Securities in the name of any predecessor Trustee shall apply only to its successor
or successors by merger, conversion or consolidation.
Section
11.08 Right to Rely on Officer’s Certificate. Subject to Section 11.02, and subject to the provisions of Section
16.01 with respect to the certificates required thereby, 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 any action hereunder,
such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence, bad
faith or willful misconduct on the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s
Certificate with respect thereto delivered to the Trustee, and such Officer’s Certificate, in the absence of negligence,
bad faith or willful misconduct on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered
or omitted by it under the provisions of this Indenture upon the faith thereof.
Section
11.09 Appointment of Authenticating Agent. The Trustee may appoint an agent (the “Authenticating Agent”)
reasonably acceptable to the Company to authenticate the Securities, and the Trustee shall give written notice of such appointment
to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. Unless limited by the terms
of such appointment, any such Authenticating Agent may authenticate Securities whenever the Trustee may do so. Each reference
in this Indenture to authentication by the Trustee includes authentication by the Authenticating Agent. 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.
Each
Authenticating Agent shall at all times be a corporation organized and doing business and in good standing under the laws of the
United States, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having
a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by Federal or State authority.
If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising
or examining authority, then for the purposes of this Article XI, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Article XI, it shall resign immediately
in the manner and with the effect specified in this Article XI.
Any
corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating
Agent, provided such corporation shall be otherwise eligible under this Article XI, without the execution or filing of any paper
or any further act on the part of the Trustee or the Authenticating Agent. An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation
or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 11.09, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company
and shall give written notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating
Agent will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section 11.09.
The
Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section
11.09, and the Trustee shall be entitled to be reimbursed for such payments, subject to the provisions of Section 11.01.
Section
11.10 Communications by Securityholders with Other Securityholders. Holders of Securities may communicate pursuant to Section
312(b) of the Trust Indenture Act with other Holders with respect to their rights under this Indenture or the Securities. The
Company, the Trustee, the Registrar and anyone else shall have the protection of Section 312(c) of the Trust Indenture Act with
respect to such communications.
ARTICLE
XII
SATISFACTION
AND DISCHARGE; DEFEASANCE
Section
12.01 Applicability of Article. If, pursuant to Section 3.01, provision is made for the defeasance of Securities of a series
and if the Securities of such series are denominated and payable only in U.S. Dollars (except as provided pursuant to Section
3.01), then the provisions of this Article shall be applicable except as otherwise specified pursuant to Section 3.01 for Securities
of such series. Defeasance provisions, if any, for Securities denominated in a Foreign Currency may be specified pursuant to Section
3.01.
Section
12.02 Satisfaction and Discharge of Indenture. This Indenture, with respect to the Securities of any series (if all series
issued under this Indenture are not to be affected), shall, upon Company Order, cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of such Securities herein expressly provided for and rights to receive
payments of principal of and premium, if any, and interest on such Securities) and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when,
(a)
either:
(i)
all Securities of such series theretofore authenticated and delivered (other than (A) Securities that have been destroyed, lost
or stolen and that have been replaced or paid as provided in Section 3.07 and (B) Securities for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 6.03) have been delivered to the Trustee for cancellation; or
(ii)
all Securities of such series not theretofore delivered to the Trustee for cancellation,
(A)
have become due and payable, or
(B)
will become due and payable at their Stated Maturity within one year, or
(C)
are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice by the
Trustee in the name, and at the expense, of the Company, and the Company,
and in the case of (A), (B) or (C) above, has deposited
or caused to be deposited with the Trustee or Paying Agent as trust funds in trust for the purpose an amount in the Currency in
which such Securities are denominated (except as otherwise provided pursuant to Section 3.01) sufficient to pay and discharge
the entire Indebtedness on such Securities for principal and premium, if any, and interest to the date of such deposit (in the
case of Securities that have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be; provided,
however, in the event a petition for relief under federal bankruptcy laws, as now or hereafter constituted, or any other applicable
federal or state bankruptcy, insolvency or other similar law, is filed with respect to the Company within 91 days after the deposit
and the Trustee is required to return the moneys then on deposit with the Trustee to the Company, the obligations of the Company
under this Indenture with respect to such Securities shall not be deemed terminated or discharged;
(b)
the Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(c)
the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this Indenture with respect to such series have been
complied with. Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee
under Section 11.01 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of clause (a)(i) of this
Section, the obligations of the Trustee under Section 12.06 and the last paragraph of Section 6.03(e) shall survive.
Section
12.03 Defeasance upon Deposit of Moneys or U.S. Government Obligations. At the Company’s option, either (a) the Company
shall be deemed to have been Discharged (as defined below) from its obligations with respect to Securities of any series on the
first day after the applicable conditions set forth below have been satisfied or (b) the Company shall cease to be under any obligation
to comply with any term, provision or condition set forth in Section 6.04 with respect to Securities of any series (and, if so
specified pursuant to Section 3.01, any other restrictive covenant added for the benefit of such series pursuant to Section 3.01)
at any time after the applicable conditions set forth below have been satisfied:
(a)
The Company shall have deposited or caused to be deposited irrevocably with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the Holders of the Securities of such series (i) money in an
amount, or (ii) U.S. Government Obligations (as defined below) that through the payment of interest and principal in respect thereof
in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or
(iii) a combination of (i) and (ii), sufficient to pay and discharge each installment of principal (including any mandatory sinking
fund payments) of and premium, if any, and interest on, the Outstanding Securities of such series on the dates such installments
of interest or principal and premium are due;
(b)
No Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit (other
than a Default resulting from the borrowing of funds and the grant of any related liens to be applied to such deposit); and
(c)
The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that Holders of the Securities of such series
will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the Company’s exercise of its
option under this Section and will be subject to federal income tax on the same amounts and in the same manner and at the same
times as would have been the case if such action had not been exercised and, in the case of the Securities of such series being
Discharged accompanied by a ruling to that effect received from or published by the Internal Revenue Service.
“Discharged”
means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by, and obligations under,
the Securities of such series and to have satisfied all the obligations under this Indenture relating to the Securities of such
series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), except (A) the
rights of Holders of Securities of such series to receive, from the trust fund described in clause (a) above, payment of the principal
of and premium, if any, and interest on such Securities when such payments are due, (B) the Company’s obligations with respect
to Securities of such series under Sections 3.04, 3.06, 3.07, 6.02 and 12.06 and (C) the rights, powers, trusts, duties and immunities
of the Trustee hereunder.
“U.S.
Government Obligations” means securities that are (i) direct obligations of the United States 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 the timely of payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States, that, in either case under clauses (i) or (ii) are not callable or redeemable at the action of
the issuer thereof, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to
any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held
by such custodian for the account of the holder of a depositary receipt; provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or the specific payment of interest on or principal of the U.S.
Government Obligation evidenced by such depositary receipt.
Section
12.04 Repayment to Company. The Trustee and any Paying Agent shall promptly pay to the Company (or to its designee) upon
Company Order any excess moneys or U.S. Government Obligations held by them at any time. The provisions of the last paragraph
of Section 6.03 shall apply to any money held by the Trustee or any Paying Agent under this Article that remains unclaimed for
two years after the Maturity of any series of Securities for which money or U.S. Government Obligations have been deposited pursuant
to Section 12.03.
Section
12.05 Indemnity for U.S. Government Obligations. The Company shall pay and shall indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the deposited U.S. Government Obligations or the principal or interest received
on such U.S. Government Obligations.
Section
12.06 Application of Trust Money.
(a)
Subject to any applicable abandoned property law, neither the Trustee nor any other paying agent shall be required to pay interest
on any moneys deposited pursuant to the provisions of this Indenture, except such as it shall agree with the Company in writing
to pay thereon. Any moneys so deposited for the payment of the principal of, or premium, if any, or interest on the Securities
of any series and remaining unclaimed for two years after the date of the maturity of the Securities of such series or the date
fixed for the redemption of all the Securities of such series at the time outstanding, as the case may be, shall be repaid by
the Trustee or such other paying agent to the Company upon its written request and thereafter, anything in this Indenture to the
contrary notwithstanding, any rights of the Holders of Securities of such series in respect of which such moneys shall have been
deposited shall be enforceable only against the Company, and all liability of the Trustee or such other paying agent with respect
to such moneys shall thereafter cease.
(b)
Subject to the provisions of the foregoing paragraph, any moneys which at any time shall be deposited by the Company or on its
behalf with the Trustee or any other paying agent for the purpose of paying the principal of, premium, if any, and interest on
any of the Securities shall be and are hereby assigned, transferred and set over to the Trustee or such other paying agent in
trust for the respective Holders of the Securities for the purpose for which such moneys shall have been deposited; but such moneys
need not be segregated from other funds except to the extent required by law.
Section
12.07 Deposits of Non-U.S. Currencies. Notwithstanding the foregoing provisions of this Article, if the Securities of any
series are payable in a Currency other than U.S. Dollars, the Currency or the nature of the government obligations to be deposited
with the Trustee or paying agent under the foregoing provisions of this Article shall be as set forth in the Officer’s Certificate
or established in the supplemental indenture under which the Securities of such series are issued.
ARTICLE
XIII
IMMUNITY
OF CERTAIN PERSONS
Section
13.01 No Personal Liability. No recourse shall be had for the payment of the principal of, or the premium, if any, or interest
on, any Security or for any claim based thereon or otherwise in respect thereof or of the Indebtedness represented thereby, or
upon any obligation, covenant or agreement of this Indenture, against any incorporator, stockholder, officer or director, as such,
past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitutional provision, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly agreed and understood that this Indenture and the Securities are solely corporate
obligations, and that no personal liability whatsoever shall attach to, or be incurred by, any incorporator, stockholder, officer
or director, as such, past, present or future, of the Company or of any successor corporation, either directly or through the
Company or any successor corporation, because of the incurring of the Indebtedness hereby authorized or under or by reason of
any of the obligations, covenants, promises or agreements contained in this Indenture or in any of the Securities, or to be implied
herefrom or therefrom, and that all liability, if any, of that character against every such incorporator, stockholder, officer
and director is, by the acceptance of the Securities and as a condition of, and as part of the consideration for, the execution
of this Indenture and the issue of the Securities expressly waived and released.
ARTICLE
XIV
SUPPLEMENTAL
INDENTURES
Section
14.01 Without Consent of Securityholders. Except as otherwise provided as contemplated by Section 3.01 with respect to
any series of Securities, the Company and the Trustee, at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any one or more of or all the following purposes:
(a)
to add to the covenants and agreements of the Company, to be observed thereafter and during the period, if any, in such supplemental
indenture or indentures expressed, and to add Events of Default, in each case for the protection or benefit of the Holders of
all or any series of the Securities (and if such covenants, agreements and Events of Default are to be for the benefit of fewer
than all series of Securities, stating that such covenants, agreements and Events of Default are expressly being included for
the benefit of such series as shall be identified therein), or to surrender any right or power herein conferred upon the Company;
(b)
to delete or modify any Events of Default with respect to all or any series of the Securities, the form and terms of which are
being established pursuant to such supplemental indenture as permitted in Section 3.01 (and, if any such Event of Default is applicable
to fewer than all such series of the Securities, specifying the series to which such Event of Default is applicable), and to specify
the rights and remedies of the Trustee and the Holders of such Securities in connection therewith;
(c)
to add to or change any of the provisions of this Indenture to provide, change or eliminate any restrictions on the payment of
principal of or premium, if any, on Securities; provided that any such action shall not adversely affect the interests of the
Holders of Securities of any series in any material respect;
(d)
to change or eliminate any of the provisions of this Indenture; provided that any such change or elimination shall become effective
only when there is no Outstanding Security of any series created prior to the execution of such supplemental indenture that is
entitled to the benefit of such provision and as to which such supplemental indenture would apply;
(e)
to evidence the succession of another corporation to the Company, or successive successions, and the assumption by such successor
of the covenants and obligations of the Company contained in the Securities of one or more series and in this Indenture or any
supplemental indenture;
(f)
to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to one or more series
of Securities and to add to or change any of the provisions of this Indenture as shall be necessary for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 11.06(c);
(g)
to secure any series of Securities;
(h)
to evidence any changes to this Indenture pursuant to Sections 11.05, 11.06 or 11.07 hereof as permitted by the terms thereof;
(i)
to cure or reform any ambiguity mistake, manifest error, omission, defect or inconsistency, or to conform the text of any provision
herein or in any indenture supplemental hereto to any description thereof in the applicable section of a prospectus, prospectus
supplement or other offering document that was intended to be a verbatim recitation of a provision of this Indenture of any indenture
supplemental hereto;
(j)
to add to or change or eliminate any provision of this Indenture as shall be necessary or desirable in accordance with any amendments
to the Trust Indenture Act;
(k)
to add guarantors or co-obligors with respect to any series of Securities;
(l)
to make any change in any series of Securities that does not adversely affect in any material respect the interests of the Holders
of such Securities;
(m)
to provide for uncertificated securities in addition to certificated securities;
(n)
to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance
and discharge of any series of Securities; provided that any such action shall not adversely affect the interests of the Holders
of Securities of such series or any other series of Securities;
(o)
to prohibit the authentication and delivery of additional series of Securities; or
(p)
to establish the form and terms of Securities of any series as permitted in Section 3.01, or to authorize the issuance of additional
Securities of a series previously authorized or to add to the conditions, limitations or restrictions on the authorized amount,
terms or purposes of issue, authentication or delivery of the Securities of any series, as herein set forth, or other conditions,
limitations or restrictions thereafter to be observed.
Subject
to the provisions of Section 14.03, the Trustee is authorized to join with the Company in the execution of any such supplemental
indenture, to make the further agreements and stipulations which may be therein contained and to accept the conveyance, transfer,
assignment, mortgage or pledge of any property or assets thereunder.
Any
supplemental indenture authorized by the provisions of this Section 14.01 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
14.02.
Section
14.02 With Consent of Securityholders; Limitations.
(a)
With the consent of the Holders (evidenced as provided in Article VIII) of at least a majority in aggregate principal amount of
the Outstanding Securities of each series affected by such supplemental indenture voting separately, the Company and the Trustee
may, from time to time and at any time, enter into an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any provisions of this Indenture or of modifying in any manner the rights
of the Holders of the Securities of such series to be affected; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security of each such series affected thereby,
(i)
extend the Stated Maturity of the principal of, or any installment of interest on, any Security, or reduce the principal amount
thereof or the interest thereon or any premium payable upon redemption thereof, or extend the Stated Maturity of, or change the
Currency in which the principal of and premium, if any, or interest on such Security is denominated or payable, or reduce the
amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 7.02, or impair the right to institute suit for the enforcement of any payment on
or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or materially adversely
affect the economic terms of any right to convert or exchange any Security as may be provided pursuant to Section 3.01; or
(ii)
reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required
for any supplemental indenture, or the consent of whose Holders is required for any waiver of compliance with certain provisions
of this Indenture or certain Defaults hereunder and their consequences provided for in this Indenture; or
(iii)
modify any of the provisions of this Section, Section 7.06 or Section 6.06, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding
Security affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect
to changes in the references to “the Trustee” and concomitant changes in this Section and Section 6.06,
or the deletion of this proviso, in accordance with the requirements of Sections 11.06 and 14.01(f); or
(iv)
modify, without the written consent of the Trustee, the rights, duties or immunities of the Trustee.
(b)
A supplemental indenture that changes or eliminates any provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities or which modifies the rights of the Holders of Securities of such series
with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders
of Securities of any other series.
(c)
It shall not be necessary for the consent of the Securityholders under this Section 14.02 to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
(d)
The Company may set a record date for purposes of determining the identity of the Holders of each series of Securities entitled
to give a written consent or waive compliance by the Company as authorized or permitted by this Section. Such record date shall
not be more than 30 days prior to the first solicitation of such consent or waiver or the date of the most recent list of Holders
furnished to the Trustee prior to such solicitation pursuant to Section 312 of the Trust Indenture Act.
(e)
Promptly after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section
14.02, the Company shall mail a notice, setting forth in general terms the substance of such supplemental indenture, to the Holders
of Securities at their addresses as the same shall then appear in the Register of the Company. Any failure of the Company to mail
such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
Section
14.03 Trustee Protected. Upon the request of the Company, accompanied by the Officer’s Certificate and Opinion of
Counsel required by Section 16.01 stating that the execution of such supplemental indenture is authorized or permitted by this
Indenture, and evidence reasonably satisfactory to the Trustee of consent of the Holders if the supplemental indenture is to be
executed pursuant to Section 14.02, the Trustee shall join with the Company in the execution of said supplemental indenture unless
said 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 said supplemental indenture. The Trustee
shall be fully protected in relying upon such Officer’s Certificate and an Opinion of Counsel.
Section
14.04 Effect of Execution of Supplemental Indenture. Upon the execution of any supplemental indenture pursuant to the provisions
of this Article XIV, this Indenture shall be deemed to be modified and amended in accordance therewith and, except as herein otherwise
expressly provided, the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the
Trustee, the Company and the Holders of all of the Securities or of the Securities of any series affected, as the case may be,
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
14.05 Notation on or Exchange of Securities. Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to the provisions of this Article may bear a notation in the form approved by the Trustee
as to any matter provided for in such supplemental indenture. If the Company or the Trustee shall so determine, new Securities
so modified as to conform, in the opinion of the Trustee and the Board of Directors of the Company, to any modification of this
Indenture contained in any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered
by the Trustee in exchange for the Securities then Outstanding in equal aggregate principal amounts, and such exchange shall be
made without cost to the Holders of the Securities.
Section
14.06 Conformity with TIA. Every supplemental indenture executed pursuant to the provisions of this Article shall conform
to the requirements of the Trust Indenture Act as then in effect.
ARTICLE
XV
SUBORDINATION
OF SECURITIES
Section
15.01 Agreement to Subordinate. In the event a series of Securities is designated as subordinated pursuant to Section 3.01,
and except as otherwise provided in a Company Order or in one or more indentures supplemental hereto, the Company, for itself,
its successors and assigns, covenants and agrees, and each Holder of Securities of such series by his, her or its acceptance thereof,
likewise covenants and agrees, that the payment of the principal of (and premium, if any) and interest, if any, on each and all
of the Securities of such series is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, in right
of payment to the prior payment in full of all Senior Indebtedness. In the event a series of Securities is not designated as subordinated
pursuant to Section 3.01(s), this Article XV shall have no effect upon the Securities.
Section
15.02 Distribution on Dissolution, Liquidation and Reorganization; Subrogation of Securities. Subject to Section 15.01,
upon any distribution of assets of the Company upon any dissolution, winding up, liquidation or reorganization of the Company,
whether in bankruptcy, insolvency, reorganization or receivership proceedings or upon an assignment for the benefit of creditors
or any other marshalling of the assets and liabilities of the Company or otherwise (subject to the power of a court of competent
jurisdiction to make other equitable provision reflecting the rights conferred in this Indenture upon the Senior Indebtedness
and the holders thereof with respect to the Securities and the holders thereof by a lawful plan of reorganization under applicable
bankruptcy law):
(a)
the holders of all Senior Indebtedness shall be entitled to receive payment in full of the principal thereof (and premium, if
any) and interest due thereon before the Holders of the Securities are entitled to receive any payment upon the principal (or
premium, if any) or interest, if any, on Indebtedness evidenced by the Securities; and
(b)
any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which
the Holders of the Securities or the Trustee would be entitled except for the provisions of this Article XV shall be paid by the
liquidation trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver
or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives
or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have
been issued, ratably according to the aggregate amounts remaining unpaid on account of the principal of (and premium, if any)
and interest on the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior
Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness;
and
(c)
in the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities prohibited by the foregoing, shall be received by the Trustee or the Holders of the Securities
before all Senior Indebtedness is paid in full, such payment or distribution shall be paid over, upon written notice to a Responsible
Officer of the Trustee, to the holder of such Senior Indebtedness or his, her or its representative or representatives or to the
trustee or trustees under any indenture under which any instrument evidencing any of such Senior Indebtedness may have been issued,
ratably as aforesaid, as calculated by the Company, for application to payment of all Senior Indebtedness remaining unpaid until
all such Senior Indebtedness shall have been paid in full, after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness.
(d)
Subject to the payment in full of all Senior Indebtedness, the Holders of the Securities shall be subrogated to the rights of
the holders of Senior Indebtedness (to the extent that distributions otherwise payable to such holder have been applied to the
payment of Senior Indebtedness) to receive payments or distributions of cash, property or securities of the Company applicable
to Senior Indebtedness until the principal of (and premium, if any) and interest, if any, on the Securities shall be paid in full
and no such payments or distributions to the Holders of the Securities of cash, property or securities otherwise distributable
to the holders of Senior Indebtedness shall, as between the Company, its creditors other than the holders of Senior Indebtedness,
and the Holders of the Securities be deemed to be a payment by the Company to or on account of the Securities. It is understood
that the provisions of this Article XV are and are intended solely for
the purpose of defining the relative rights of the Holders
of the Securities, on the one hand, and the holders of the Senior Indebtedness, on the other hand. Nothing contained in this Article
XV or elsewhere in this Indenture or in the Securities is intended to or shall impair, as between the Company, its creditors other
than the holders of Senior Indebtedness, and the Holders of the Securities, the obligation of the Company, which is unconditional
and absolute, to pay to the Holders of the Securities the principal of (and premium, if any) and interest, if any, on the Securities
as and when the same shall become due and payable in accordance with their terms, or to affect the relative rights of the Holders
of the Securities and creditors of the Company other than the holders of Senior Indebtedness, nor shall anything herein or in
the Securities prevent the Trustee or the Holder of any Security from exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the rights, if any, under this Article XV of the holders of Senior Indebtedness
in respect of cash, property or securities of the Company received upon the exercise of any such remedy. Upon any payment or distribution
of assets of the Company referred to in this Article XV, the Trustee, subject to the provisions of Section 15.05, shall be entitled
to conclusively rely upon a certificate of the liquidating trustee or agent or other person making any distribution to the Trustee
for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereof and
all other facts pertinent thereto or to this Article XV.
Section
15.03 No Payment on Securities in Event of Default on Senior Indebtedness. Subject to Section 15.01, no payment by the
Company on account of principal (or premium, if any), sinking funds or interest, if any, on the Securities shall be made at anytime
if: (i) a default on Senior Indebtedness exists that permits the holders of such Senior Indebtedness to accelerate its maturity
and (ii) the default is the subject of judicial proceedings or the Company has received notice of such default. The Company may
resume payments on the Securities when full payment of amounts then due for principal (premium, if any), sinking funds and interest
on Senior Indebtedness has been made or duly provided for in money or money’s worth.
In
the event that, notwithstanding the foregoing, any payment shall be received by the Trustee when such payment is prohibited by
the preceding paragraph of this Section 15.03, such payment shall be held in trust for the benefit of, and shall be paid over
or delivered to, the holders of such Senior Indebtedness or their respective representatives, or to the trustee or trustees under
any indenture pursuant to which any of such Senior Indebtedness may have been issued, as their respective interests may appear,
as calculated by the Company, but only to the extent that the holders of such Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing within 90 days of such payment of the amounts then due and owing on
such Senior Indebtedness and only the amounts specified in such notice to the Trustee shall be paid to the holders of such Senior
Indebtedness.
Section
15.04 Payments on Securities Permitted. Subject to Section 15.01, nothing contained in this Indenture or in any of the
Securities shall (a) affect the obligation of the Company to make, or prevent the Company from making, at any time except as provided
in Sections 15.02 and 15.03, payments of principal of (or premium, if any) or interest, if any, on the Securities or (b) prevent
the application by the Trustee of any moneys or assets deposited with it hereunder to the payment of or on account of the principal
of (or premium, if any) or interest, if any, on the Securities, unless a Responsible Officer of the Trustee shall have received
at its Corporate Trust Office written notice of any fact prohibiting the making of such payment from the Company or from the holder
of any Senior Indebtedness or from the trustee for any such holder, together with proof satisfactory to the Trustee of such holding
of Senior Indebtedness or of the authority of such trustee more than two Business Days prior to the date fixed for such payment.
Section
15.05 Authorization of Securityholders to Trustee to Effect Subordination. Subject to Section 15.01, each Holder of Securities
by his acceptance thereof authorizes and directs the Trustee on his, her or its behalf to take such action as may be necessary
or appropriate to effectuate the subordination as provided in this Article XV and appoints the Trustee his attorney-in-fact for
any and all such purposes.
Section
15.06 Notices to Trustee. The Company shall give prompt written notice to a Responsible Officer of the Trustee of any fact
known to the Company that would prohibit the making of any payment of monies or assets to or by the Trustee in respect of the
Securities of any series pursuant to the provisions of this Article XV. Subject to Section 15.01, notwithstanding the provisions
of this Article XV or any other provisions of this Indenture, neither the Trustee nor any Paying Agent (other than the Company)
shall be charged with knowledge of the existence of any Senior Indebtedness or of any fact which would prohibit the making of
any payment of moneys or assets to or by the Trustee or such Paying Agent, unless and until a Responsible Officer of the Trustee
or such Paying Agent shall have received (in the case of a Responsible Officer of the Trustee, at the Corporate Trust Office of
the Trustee) written notice thereof from the Company or from the holder of any Senior Indebtedness or from the trustee for any
such holder, together with proof satisfactory to the Trustee of such holding of Senior Indebtedness or of the authority of such
trustee and, prior to the receipt of any such written notice, the Trustee shall be entitled in all respects conclusively to presume
that no such facts exist; provided, however, that if at least two Business Days prior to the date upon which by the terms hereof
any such moneys or assets may become payable for any purpose (including, without limitation, the payment of either the principal
(or premium, if any) or interest, if any, on any Security) a Responsible Officer of the Trustee shall not have received with respect
to such moneys or assets the notice provided for in this Section 15.06, then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such moneys or assets and to apply the same to the purpose for which
they were received, and shall not be affected by any notice to the contrary which may be received by it within two Business Days
prior to such date. The Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself
to be a holder of Senior Indebtedness (or a trustee on behalf of such holder) to establish that such a notice has been given by
a holder of Senior Indebtedness or a trustee on behalf of any such holder. In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to participate in
any payment or distribution pursuant to this Article XV, the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent to which such Person is entitled
to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article XV
and, if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to
the right of such Person to receive such payment.
Section
15.07 Trustee as Holder of Senior Indebtedness. Subject to Section 15.01, the Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article XV in respect of any Senior Indebtedness at any time held by it to the
same extent as any other holder of Senior Indebtedness and nothing in this Indenture shall be construed to deprive the Trustee
of any of its rights as such holder. Nothing in this Article XV shall apply to claims of, or payments to, the Trustee under or
pursuant to Sections 7.05 or 11.01.
Section
15.08 Modifications of Terms of Senior Indebtedness. Subject to Section 15.01, any renewal or extension of the time of
payment of any Senior Indebtedness or the exercise by the holders of Senior Indebtedness of any of their rights under any instrument
creating or evidencing Senior Indebtedness, including, without limitation, the waiver of default thereunder, may be made or done
all without notice to or assent from the Holders of the Securities or the Trustee. No compromise, alteration, amendment, modification,
extension, renewal or other change of, or waiver, consent or other action in respect of, any liability or obligation under or
in respect of, or of any of the terms, covenants or conditions of any indenture or other instrument under which any Senior Indebtedness
is outstanding or of such Senior Indebtedness, whether or not such release is in accordance with the provisions of any applicable
document, shall in any way alter or affect any of the provisions of this Article XV or of the Securities relating to the subordination
thereof.
Section
15.09 Reliance on Judicial Order or Certificate of Liquidating Agent. Subject to Section 15.01, upon any payment or distribution
of assets of the Company referred to in this Article XV, the Trustee and the Holders of the Securities shall be entitled to conclusively
rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership,
liquidation, reorganization, dissolution, winding up or similar case or proceeding is pending, or a certificate of the trustee
in bankruptcy, liquidating trustee, custodian, receiver, assignee for the benefit of creditors, agent or other person making such
payment or distribution, delivered to the Trustee or to the Holders of Securities, for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of Senior Indebtedness and other indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto
or to this Article XV.
Section
15.10 Satisfaction and Discharge; Defeasance and Covenant Defeasance. Subject to Section 15.01, amounts and U.S. Government
Obligations deposited in trust with the Trustee pursuant to and in accordance with Article XII and not, at the time of such deposit,
prohibited to be deposited under Sections 15.02 or 15.03 shall not be subject to this Article XV.
Section
15.11 Trustee Not Fiduciary for Holders of Senior Indebtedness. With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or observe only such of its covenants and obligations as are specifically set forth in this Article
XV, and no implied covenants or obligations with respect to the holders of Senior Indebtedness shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness. The Trustee
shall not be liable to any such holder if it shall pay over or distribute to or on behalf of Holders of Securities or the Company,
or any other Person, moneys or assets to which any holder of Senior Indebtedness shall be entitled by virtue of this Article XV
or otherwise.
ARTICLE
XVI
MISCELLANEOUS
PROVISIONS
Section
16.01 Certificates and Opinions as to Conditions Precedent.
(a)
Upon any request or application by the Company to the Trustee to take any action under any of the provisions of this Indenture,
the Company shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion
of such counsel all such conditions precedent have been complied with, except that in the case of any such application or demand
as to which the furnishing of such document 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 provided for in this Indenture (other than the certificates provided pursuant to Section 6.05 of this Indenture) shall
include (i) a statement that the Person giving such certificate or opinion has read such covenant or condition; (ii) a brief statement
as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate
or opinion are based; (iii) a statement that, in the view or opinion of such Person, he or she has made such examination or investigation
as is necessary to enable such Person to express an informed view or opinion as to whether or not such covenant or condition has
been complied with; and (iv) a statement as to whether or not, in the view or opinion of such Person, such condition or covenant
has been complied with.
(c)
Any certificate, statement or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon
a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to the matters upon which his or her certificate,
statement or opinion is based are erroneous. Any certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, upon a certificate, statement or opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate, statement or opinion or representations with respect
to such matters are erroneous.
(d)
Any certificate, statement or opinion of an officer of the Company or of counsel to the Company may be based, insofar as it relates
to accounting matters, upon a certificate or opinion of, or representations by, an accountant or firm of accountants, unless such
officer or counsel, as the case may be, knows, or in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the accounting matters upon which his or her certificate, statement or opinion may be based
are erroneous. Any certificate or opinion of any firm of independent registered public accountants filed with the Trustee shall
contain a statement that such firm is independent.
(e)
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several
documents.
(f)
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section
16.02 Trust Indenture Act Controls. If and to the extent that any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by, or another provision included in this Indenture which is required to be included in this Indenture
by any of the provisions of Sections 310 to 318, inclusive, of the Trust Indenture Act, such imposed duties or incorporated provision
shall control.
Section
16.03 Notices to the Company and Trustee. Any notice or demand authorized by this Indenture to be made upon, given or furnished
to, or filed with, the Company or the Trustee shall be sufficiently made, given, furnished or filed for all purposes if it shall
be mailed, delivered or telefaxed to:
(a)
the Company, at 1350 East Arapaho Road, Suite 230, Richardson, Texas 75081, Attention: Chief Financial Officer, Facsimile No.: _________, or at
such other address or facsimile number as may have been furnished in writing to the Trustee by the Company.
(b)
the Trustee, at the Corporate Trust Office of the Trustee, Attention: Trust Administrator.
Any
such notice, demand or other document shall be in the English language.
Section
16.04 Notices to Securityholders; Waiver. Any notice required or permitted to be given to Securityholders shall be sufficiently
given (unless otherwise herein expressly provided),
(a)
if to Holders, if given in writing by first class mail, postage prepaid, to such Holders at their addresses as the same shall
appear on the Register of the Company.
(b)
In the event of suspension of regular mail service or by reason of any other cause it shall be impracticable to give notice by
mail, then such notification as shall be given with the approval of the Trustee shall constitute sufficient notice for every purpose
hereunder.
(c)
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance
on such waiver. In any case where notice to Holders is given by mail; neither the failure to mail such notice nor any defect in
any notice so mailed to any particular Holder shall affect the sufficiency of such notice with respect to other Holders, and any
notice that is mailed in the manner herein provided shall be conclusively presumed to have been duly given. In any case where
notice to Holders is given by publication, any defect in any notice so published as to any particular Holder shall not affect
the sufficiency of such notice with respect to other Holders, and any notice that is published in the manner herein provided shall
be conclusively presumed to have been duly given.
Section
16.05 Legal Holiday. Unless otherwise specified pursuant to Section 3.01, in any case where any Interest Payment Date,
Redemption Date or Maturity of any Security of any series shall not be a Business Day at any Place of Payment for the Securities
of that series, then payment of principal and premium, if any, or interest need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on such
Interest Payment Date, Redemption Date or Maturity and no interest shall accrue on such payment for the period from and after
such Interest Payment Date, Redemption Date or Maturity, as the case may be, to such Business Day if such payment is made or duly
provided for on such Business Day.
Section
16.06 Effects of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section
16.07 Successors and Assigns. All covenants and agreements in this Indenture by the parties hereto shall bind their respective
successors and assigns and inure to the benefit of their permitted successors and assigns, whether so expressed or not.
Section
16.08 Separability Clause. In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section
16.09 Benefits of Indenture. Nothing in this Indenture expressed and nothing that may be implied from any of the provisions
hereof is intended, or shall be construed, to confer upon, or to give to, any Person or corporation other than the parties hereto
and their successors and the Holders of the Securities any benefit or any
right,
remedy or claim under or by reason of this Indenture or any covenant, condition, stipulation, promise or agreement hereof, and
all covenants, conditions, stipulations, promises and agreements in this Indenture contained shall be for the sole and exclusive
benefit of the parties hereto and their successors and of the Holders of the Securities.
Section
16.10 Counterparts Originals. This Indenture may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
Section
16.11 Governing Law; Waiver of Trial by Jury. This Indenture and the Securities shall be deemed to be contracts made under
the law of the State of New York and for all purposes shall be governed by and construed in accordance with the law of said State.
EACH
PARTY HERETO, AND EACH HOLDER OF A SECURITY BY ACCEPTANCE THEREOF, HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS INDENTURE.
[signature
page follows]
IN
WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the date first written above.
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NUZEE,
INC.,
as Issuer |
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By: |
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Name: |
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Title: |
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_____________________,
as
Trustee |
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By: |
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Name: |
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Title: |
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CROSS-REFERENCE
TABLE (1)
Section
of Trust Indenture Act of 1939, as Amended |
|
Section
of Indenture |
|
|
|
310(a) |
|
11.04(a) |
|
|
|
310(b) |
|
11.04(b) |
|
|
|
310(c) |
|
Inapplicable |
|
|
|
311(a) |
|
11.01(f) |
|
|
|
311(b) |
|
11.01(f) |
|
|
|
311(c) |
|
Inapplicable |
|
|
|
312(a) |
|
10.03(a) |
|
|
|
|
|
10.03(b) |
|
|
|
312(b) |
|
11.10 |
|
|
|
312(c) |
|
11.10 |
|
|
|
313(a) |
|
10.01(a) |
|
|
|
313(b) |
|
10.01(a) |
|
|
|
313(c) |
|
10.01(a) |
|
|
|
313(d) |
|
10.01(b) |
|
|
|
314(a) |
|
6.05 |
|
|
|
|
|
10.02 |
|
|
|
314(b) |
|
Inapplicable |
|
|
|
314(c) |
|
16.01(a) |
|
|
|
|
|
16.01(d) |
|
|
|
314(d) |
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Inapplicable |
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|
|
314(e) |
|
16.01(b) |
|
|
|
314(f) |
|
Inapplicable |
|
|
|
315(a) |
|
11.02(b) |
|
|
|
315(b) |
|
11.03 |
|
|
|
315(c) |
|
11.02(a) |
|
|
|
|
|
|
315(d) |
|
11.02(b)(i) |
|
|
|
|
|
11.02(b)(ii) |
|
|
|
315(e) |
|
7.08 |
|
|
|
316(a) |
|
7.06 |
|
|
|
316(b) |
|
7.07 |
|
|
|
316(c) |
|
8.02(e) |
|
|
|
317(a) |
|
7.03 |
|
|
|
317(b) |
|
6.03 |
|
|
|
318(a) |
|
16.02 |
(1) |
This
Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation of any
of its terms or provisions. |
Exhibit
5.1
September
29, 2023
Board
of Directors
NuZee,
Inc.
1350
East Arapaho Road, Suite 230
Richardson
Tx 75081
Ladies
and Gentlemen:
We
have acted as counsel to NuZee, Inc., a Nevada corporation (the “Company”), in connection with the Company’s
filing of a Registration Statement on Form S-3 (as amended or supplemented, the “Registration Statement”) pursuant
to the Securities Act of 1933, as amended (the “Securities Act”), relating to the registration of the offer and sale
from time to time of up to $100,000,000 of an indeterminate number of the following securities: (i) shares of the Company’s common
stock, par value $0.00001 per share (the “Common Stock”), (ii) the Company’s debt securities that may be convertible
into Common Stock (the “Debt Securities”), (iii) warrants to purchase the Company’s equity and/or debt securities
(the “Warrants”), (iv) units composed of shares of Common Stock, Debt Securities and/or Warrants in any combination
(the “Units”), and (v) rights to purchase any of the securities described above in any combination (the “Rights”).
The
Common Stock, Debt Securities, Warrants, Units and Rights are sometimes referred to collectively herein as the “Securities.”
As set forth in the Registration Statement, any amendment thereto, the base prospectus contained therein (the “Base Prospectus”),
and one or more supplements to the Base Prospectus filed pursuant to Rule 415 promulgated under the Securities Act, the Securities may
be offered in an unspecified number at indeterminate prices from time to time by the Company under the Registration Statement.
For
purposes of this opinion letter, we have examined copies of such agreements, instruments and documents as we have deemed an appropriate
basis on which to render the opinions hereinafter expressed. In our examination of the aforesaid documents, we have assumed the genuineness
of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all documents submitted to us, the authenticity
of all original documents, and the conformity to authentic original documents of all documents submitted to us as copies (including telecopies).
As to all matters of fact, we have relied on the representations and statements of fact made in the documents so reviewed, and we have
not independently established the facts so relied on. This opinion letter is given, and all statements herein are made, in the context
of the foregoing.
This
opinion is based as to matters of law solely on the applicable provisions of the following, as currently in effect: as to the opinions
set forth in paragraphs 1 and 2 below, Chapter 78 of the Nevada Revised Statutes, as amended (but not including any laws, statutes, ordinances,
administrative decisions, rules or regulations of any political subdivision below the state level); and as to the opinions set forth
in paragraphs 3, 4, 5 and 6, the laws of the State of New York (but not including any laws, statutes, ordinances, administrative decisions,
rules or regulations of any political subdivision below the state level). We express no opinion herein as to any other statutes, rules
or regulations (and in particular, we express no opinion as to any effect that such other statutes, rules or regulations may have on
the opinions expressed herein).
For
purposes of the opinions expressed below, without limiting any other exceptions or qualifications set forth herein, we have assumed that
(i) after the issuance of any Securities offered pursuant to the Registration Statement, the total number of issued shares of Common
Stock, together with the total number of shares of Common Stock reserved for issuance upon the exercise, exchange, conversion or settlement,
as the case may be, of any exercisable, exchangeable or convertible security, as the case may be, then outstanding, will not exceed the
total number of authorized shares of Common Stock under the Company’s Articles of Incorporation, as currently amended, as may be
further amended and then in effect (the “Articles”), (ii) at the time of the offer, issuance and sale of any Securities,
the Registration Statement (including all necessary post-effective amendments thereto) has been declared effective by the U.S. Securities
and Exchange Commission and no stop order suspending its effectiveness will have been issued and remain in effect (the “Commission”),
(iii) the issuance, sale, amount and terms, including the consideration to be received, of any Securities to be offered from time to
time will have been duly authorized and established by proper action of the board of directors of the Company or a duly authorized committee
of such board (“Board Action”), consistent with the procedures and terms described in the Registration Statement and
in accordance with the Articles, the third amended and restated Bylaws of the Company and applicable Nevada law, each as then in effect,
in a manner that does not violate any law, government or court-imposed order or restriction or agreement or instrument then binding on
the Company or otherwise impair the legal or binding nature of the obligations represented by the applicable Securities, and (iv) the
Company will remain a Nevada corporation.
To
the extent that the obligations of the Company with respect to the Securities may be dependent upon such matters, we assume for purposes
of this opinion that the other party under the indenture for any Debt Securities, under the warrant agreement for any Warrants, under
the unit agreement for any Units and under the subscription rights agreement for any Rights, namely, the trustee, the warrant agent,
the unit agent or the subscription agent, respectively, is duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization; that such other party is duly qualified to engage in the activities contemplated by such indenture, warrant
agreement, unit agreement or subscription rights agreement, as applicable; that such indenture, warrant agreement, unit agreement or
subscription rights agreement, as applicable, has been duly authorized, executed and delivered by the other party and constitutes the
legal, valid and binding obligation of the other party enforceable against the other party in accordance with its terms; that such other
party is in compliance with respect to performance of its obligations under such indenture, warrant agreement, unit agreement or subscription
rights agreement, as applicable, with all applicable laws and regulations; and that such other party has the requisite organizational
and legal power and authority to perform its obligations under such indenture, warrant agreement, unit agreement or subscription rights
agreement, as applicable.
For
purposes of the opinions expressed below, we refer to the following as the “Future Authorization and Issuance” of Securities:
|
● |
with
respect to any of the Securities, (a) the applicable Board Action, and (b) the issuance of such Securities in accordance with the
applicable Board Action upon the receipt by the Company of the consideration (which, in the case of shares of Common Stock, is not
less than the par value of such shares) to be paid therefor in accordance with the applicable Board Action; |
|
|
|
|
● |
with
respect to Debt Securities, (a) the authorization, execution and delivery by the Company and the other parties thereto of the indenture
under which such Debt Securities are to be issued, (b) the establishment of the terms of such Debt Securities, and the execution
and delivery of such Debt Securities, in accordance with the applicable indenture under which such Debt Securities are to be issued
and applicable law, and (c) the authentication of the Debt Securities by the indenture trustee (the “Trustee”)
in accordance with the applicable indenture; and |
|
|
|
|
● |
with
respect to Warrants and/or Units and/or Rights, (a) the authorization, execution and delivery by the Company and the other parties
thereto of any agreement under which such Securities are to be issued, and (b) the establishment of the terms of such Securities,
and the execution and delivery of such Securities, in accordance with any applicable agreement under which such Securities are to
be issued and applicable law. |
Based
upon the foregoing, and subject to the additional qualifications set forth below, we are of the opinion that:
1. Upon
the Future Authorization and Issuance of shares of Common Stock (including the Shares and any shares of Common Stock that are duly issued
upon the exchange or conversion of Debt Securities that are exchangeable for or convertible into shares of Common Stock or upon the exercise
of Warrants and, if applicable, receipt by the Company of any additional consideration payable upon such conversion, exchange or exercise),
such shares of Common Stock will be validly issued, fully paid and non-assessable.
2.
Upon the Future Authorization and Issuance of Debt Securities, such Debt Securities will constitute valid and legally binding
obligations of the Company.
3.
Upon the Future Authorization and Issuance of Warrants, such Warrants will constitute valid and legally binding obligations of the
Company.
4.
Upon the Future Authorization and Issuance of Units, and assuming that any underlying Securities not issued by the Company that are
components of such Units have been duly and properly authorized for issuance and constitute valid and binding obligations
enforceable against the issuer thereof in accordance with their terms, such Units will constitute valid and legally binding
obligations of the Company.
5.
Upon the Future Authorization and Issuance of Rights, such Rights will constitute valid and legally binding obligations of the Company.
The
opinions expressed in paragraphs 2, 3, 4 and 5 above with respect to the valid and binding nature of obligations may be limited by bankruptcy,
insolvency, reorganization, receivership, moratorium or other laws affecting creditors’ rights (including, without limitation,
the effect of statutory and other law regarding fraudulent conveyances, fraudulent transfers and preferential transfers) and by the exercise
of judicial discretion and the application of principles of equity, good faith, fair dealing, reasonableness, conscionability and materiality
(regardless of whether the Securities are considered in a proceeding in equity or at law).
We
hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to the reference to Baker & Hostetler
LLP under the caption “Legal Matters” in the Base Prospectus. In giving such consent, we do not thereby admit that we are
an “expert” within the meaning of the Securities Act.
Very
truly yours,
/s/
Baker & Hostetler LLP
EXHIBIT
23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated December 23, 2022 with respect
to the audited consolidated financial statements of NuZee, Inc., included in its Annual Report on Form 10-K for the year ended September
30, 2022. Our report contains an explanatory paragraph regarding the Company’s ability to continue as a going concern.
We
also consent to the references to us under the heading “Experts” in such Registration Statement.
/s/
MaloneBailey, LLP |
|
|
|
www.malonebailey.com |
|
Houston,
Texas |
|
September
29, 2023 |
|
EXHIBIT
107
Calculation
of Filing Fee Tables
Form
S-3
(Form
Type)
NuZee,
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 Rule | | |
Amount Registered(1) | | |
Proposed Maximum Offering
Price Per Unit(2) | | |
Maximum Aggregate Offering
Price | | |
Fee Rate | | |
Amount of Registration
Fee(3)(4) | | |
Carry Forward Form Type | |
Carry Forward File Number | |
Carry Forward Initial Effective Date | |
Filing Fee Paid in Connection
with Unsold Securities to be Carried Forward | |
Newly Registered Securities |
Equity | |
| Common
stock, par value $0.00001per share | | |
| 457 | (o) | |
| - | | |
| - | | |
| - | | |
| - | | |
| | | |
| |
| |
| |
| | |
Debt | |
| Debt
Securities(5) | | |
| 457 | (o) | |
| - | | |
| - | | |
| - | | |
| - | | |
| | | |
| |
| |
| |
| | |
Other | |
| Warrants(6) | | |
| 457 | (o) | |
| - | | |
| - | | |
| - | | |
| - | | |
| | | |
| |
| |
| |
| | |
Other | |
| Units(7) | | |
| 457 | (o) | |
| - | | |
| - | | |
| - | | |
| - | | |
| | | |
| |
| |
| |
| | |
Other | |
| Rights(8) | | |
| 457 | (o) | |
| - | | |
| - | | |
| - | | |
| - | | |
| | | |
| |
| |
| |
| | |
Unallocated (Universal) Shelf | |
| - | | |
| 457 | (o) | |
| | | |
| - | | |
$ | 98,091,037 | | |
$ | 0.00011020 | | |
$ | 10,810 | | |
| |
| |
| |
| | |
Carry Forward Securities |
Equity | |
| Common
stock, par value $0.00001per share | | |
| 415 | (a)(6) | |
| | | |
| | | |
| | | |
| | | |
| | | |
Form S-3 | |
333-248531 | |
October 2, 2020 | |
$ | 248 | |
Debt | |
| Debt
Securities | | |
| 415 | (a)(6) | |
| | | |
| | | |
| | | |
| | | |
| | | |
Form S-3 | |
333-248531 | |
October 2, 2020 | |
$ | 248 | |
Equity | |
| Warrants | | |
| 415 | (a)(6) | |
| | | |
| | | |
| | | |
| | | |
| | | |
Form S-3 | |
333-248531 | |
October 2, 2020 | |
$ | 248 | |
Other | |
| Units | | |
| 415 | (a)(6) | |
| | | |
| | | |
| | | |
| | | |
| | | |
Form S-3 | |
333-248531 | |
October 2, 2020 | |
$ | 248 | |
Other | |
| Rights | | |
| 415 | (a)(6) | |
| | | |
| | | |
| | | |
| | | |
| | | |
Form S-3 | |
333-248531 | |
October 2, 2020 | |
$ | 248 | |
Unallocated (Universal) Shelf | |
| - | | |
| 415 | (a)(6) | |
| | | |
| | | |
$ | 1,908,963 | | |
| | | |
| | | |
Form S-3 | |
333-248531 | |
October 2, 2020 | |
$ | 248 | |
Total Offering Amounts | | |
| | | |
$ | 100,000,000 | | |
| | | |
$ | 11,058 | | |
| |
| |
| |
| | |
Total Fees Previously
Paid | | |
| | | |
| | | |
| | | |
$ | 248 | | |
| |
| |
| |
| | |
Total Fee Offsets | | |
| | | |
| | | |
| | | |
| - | | |
| |
| |
| |
| | |
Net Fee Due | | |
| | | |
| | | |
| | | |
$ | 10,810 | | |
| |
| |
| |
| | |
(1) | This
registration statement covers the registration of such indeterminate number of securities
as may be offered and sold from time to time by the registrant, including such indeterminate
amount of debt securities and common stock as may be issued upon conversion or exchange for
any other debt securities that provide for conversion or exchange into other securities,
which shall have an aggregate initial offering price not to exceed $100,000,000. In addition,
pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities
Act”), the shares being registered hereunder include such indeterminate number of shares
of common stock as may be issuable with respect to the shares being registered hereunder
as a result of stock splits, stock dividends or similar transactions. |
(2) | Pursuant
to Instruction 2.A(iii)(b) of Item 6(b) of Form S-3, this information is not required to
be included. The proposed maximum initial offering price per share will be determined, from
time to time, by the registrant in connection with the issuance by the registrant of the
securities registered hereunder. |
(3) | Estimated
solely for the purposes of calculating the registration fee. Any securities registered hereunder
may be sold separately or as units with other securities registered hereunder. In no event
will the aggregate offering price of all securities issued by NuZee, Inc. pursuant to this
registration statement exceed $100,000,000. |
(4) | Securities
of the registrant in the proposed maximum aggregate offering amount of $100,000,000 were
previously registered on the registrant’s registration statement on Form S-3 (File
No. 333-248531) (the “Prior Registration Statement”), which was originally filed
with the Securities and Exchange Commission (the “SEC”) on September 1, 2020,
and declared effective by the SEC on October 2, 2020, $1,908,963 of which remain unsold as
of the date hereof (the “Unsold Securities”). Pursuant to Rule 415(a)(6) under
the Securities Act, an offering of $1,908,963 of the Unsold Securities will be registered
pursuant to this registration statement. The registrant previously paid a fee of $12,980
in connection with the filing of the Prior Registration Statement, of which $248 relates
to $1,908,963 of the Unsold Securities. The $248 previously paid filing fee relating to such
Unsold Securities under the Prior Registration Statement will continue to be applied to such
Unsold Securities registered on this registration statement. In accordance with Rule 415(a)(5)
and Rule 415(a)(6), the registrant may continue to offer and sell the securities covered
by the Prior Registration Statement during the grace period afforded by Rule 415(a)(5). To
the extent that, after the filing date hereof and prior to effectiveness of this Registration
Statement, the registrant sells any Unsold Securities under the Prior Registration Statement
pursuant to Rule 415(a)(6), the Registrant will identify in a pre-effective amendment to
this Registration Statement the updated amount of Unsold Securities from the Prior Registration
Statement to be included in this registration statement pursuant to Rule 415(a)(6) and the
updated amount of securities to be registered on this Registration Statement, if any. Pursuant
to Rule 415(a)(6) under the Securities Act, the offering of the Unsold Securities under the
Prior Registration Statement will be deemed terminated as of the date of effectiveness of
this Registration Statement. |
(5) | If
any debt securities are issued at an original issue discount, then the offering may be in
such greater principal amount as shall result in a maximum aggregate offering price not to
exceed the aggregate offering price of $100,000,000 for all securities sold by NuZee, Inc.
pursuant to this registration statement. |
(6) | There
is being registered hereunder an indeterminate number of warrants as may from time to time
be sold at indeterminate prices not to exceed the aggregate offering price of $100,000,000
for all securities sold by NuZee, Inc. pursuant to this registration statement. |
(7) | There
is being registered hereunder an indeterminate number of units as may from time to time be
sold at indeterminate prices not to exceed the aggregate offering price of $100,000,000 for
all securities sold by NuZee, Inc. pursuant to this registration statement. Each unit will
be issued under a unit agreement and will represent an interest in two or more other securities
registered hereunder, which may or may not be separable from one another. |
(8) | There
is being registered hereunder an indeterminate number of rights representing rights to purchase
shares of common stock or other securities registered hereby. |
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