As filed with the Securities and Exchange Commission
on August 13, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Cadiz Inc.
(Exact name of registrant as specified in its charter)
| Delaware |
|
77-0313235 |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer
Identification Number) |
550 South Hope Street
Suite 2850
Los Angeles, California 90071
(213) 271-1600
(Address, including zip code, and telephone number,
including area code, of registrant’s principal
executive offices)
Stanley E. Speer
Chief Financial Officer
550 South Hope Street
Suite 2850
Los Angeles, California 90071
(213) 271-1600
(Name, address, including zip code, and telephone
number,
including area code, of agent for service)
Copies of communications to:
Kevin Friedmann, Esq.
Norton Rose Fulbright US LLP
1045 W. Fulton Market, Suite 1200
Chicago, IL 60607
(312) 964-7763
Approximate date of commencement of proposed
sale to the public: From time to time after the effective date of this Registration Statement, as determined by market conditions
and other factors.
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. þ
If this Form is filed to register additional securities
for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant
to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a
registration statement filed pursuant 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 |
þ |
Smaller reporting company |
þ |
| |
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 this 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. These securities may not be sold until the registration statement filed with the Securities and Exchange
Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities
in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION,
DATED AUGUST 13, 2024
PROSPECTUS
$200,000,000
Cadiz Inc.
DEBT SECURITIES
COMMON STOCK
PREFERRED STOCK
DEPOSITARY SHARES
WARRANTS
SUBSCRIPTION RIGHTS
UNITS
By this prospectus and an accompanying prospectus
supplement, we may from time to time offer and sell, in one or more offerings, up to $200,000,000 in any combination of debt securities,
common stock, preferred stock, depositary shares, warrants, subscription rights and units.
This prospectus provides you with a general description
of these securities. We will provide you with more specific terms of these securities in one or more supplements to this prospectus. Any
prospectus supplement may also add, update, or change information contained in this prospectus. You should read this prospectus and the
applicable prospectus supplement or issuer free writing prospectus relating to a particular offering, as well as the documents incorporated
or deemed to be incorporated by reference in this prospectus, carefully before you invest.
We may offer these securities from time to time
in amounts, at prices and on other terms to be determined at the time of the offering. We may offer and sell these securities to or through
underwriters, dealers or agents, or directly to investors, or through a combination of these methods, on a continuous or delayed basis.
The supplements to this prospectus will provide the specific terms of the plan of distribution. See the sections of this prospectus entitled
“About this Prospectus” and “Plan of Distribution” beginning of pages 1 and 24, respectively, 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. The price to the public of such securities and the net proceeds we expect to receive from such sale
will also be set forth in the applicable prospectus supplement.
Our common stock is listed on the Nasdaq Global
Market under the symbol “CDZI”. On August 12, 2024, the closing price of our common stock as reported by the Nasdaq Global
Market was $3.01 per share. We will provide information in any applicable prospectus supplement regarding the listing of securities
other than shares of our common stock on any securities exchange.
Investing in these securities involves certain
risks. See “Risk Factors” beginning on page 4 of this prospectus and any similar
section contained in the applicable prospectus supplement and any related free writing prospectus concerning factors you should consider
before investing in our securities.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION
NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
Prospectus dated , 2024
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement
we filed with the Securities and Exchange Commission, or the “Commission” or the “SEC,” using the “shelf”
registration process. Under the shelf registration process, using this prospectus, together with a prospectus supplement, we may sell
from time to time any combination of the securities described in this prospectus in one or more offerings. This prospectus provides you
with a general description of the securities that may be offered. Each time we sell securities pursuant to this prospectus, we will provide
a prospectus supplement that will contain specific information about the terms of the securities being offered. A prospectus supplement
may include a discussion of any risk factors or other special considerations applicable to those securities or to us. The prospectus supplement
may also add to, update or change information contained in this prospectus and, accordingly, to the extent inconsistent, the information
in this prospectus will be superseded by the information in the prospectus supplement. You should read this prospectus, any applicable
prospectus supplement and any related issuer free writing prospectus, as well as the additional information incorporated by reference
in this prospectus described below under “Where You Can Find More Information” and “Information Incorporated by Reference”
or in any applicable prospectus supplement and any related issuer free writing prospectus, before making an investment in our securities.
This prospectus contains summaries of certain provisions
contained in some of the documents described herein, but reference is made to the actual documents for complete information. All of the
summaries are qualified in their entirety by the actual documents. Copies of the documents referred to herein have been filed, or will
be filed or incorporated by reference as exhibits to the registration statement of which this prospectus is a part, and you may obtain
copies of those documents as described below under “Where You Can Find More Information.”
Neither the delivery of this prospectus, any
accompanying prospectus supplement or any free writing prospectus prepared by us, nor any sale made under this prospectus, any accompanying
prospectus supplement or any free writing prospectus prepared by us, implies that there has been no change in our affairs or that the
information therein is correct as of any date after the date of this prospectus or of such prospectus supplement or free writing prospectus,
as applicable. You should not assume that the information in this prospectus, including any information incorporated in this prospectus
by reference, the accompanying prospectus supplement or any free writing prospectus prepared by us, is accurate as of any date other than
the date on the front of those documents. Our business, financial condition, results of operations and prospects may have changed since
that date.
You may rely only on the information contained
or incorporated by reference in this prospectus. Neither we nor any other person has authorized anyone to provide any information other
than that contained or incorporated by reference in this prospectus, any accompanying prospectus supplement or in any free writing prospectus
prepared by or on behalf of us or to which we have referred you. We take no responsibility for, and can provide no assurance as to the
reliability of, any other information that others may give you. Neither this prospectus nor any accompanying prospectus supplement nor
any free writing prospectus prepared by or on behalf of us or to which we have referred you constitutes an offer to sell nor a solicitation
of an offer to buy any securities other than those registered by this prospectus, or an offer to sell or a solicitation of an offer to
buy securities where an offer or solicitation would be unlawful. This prospectus does not contain all of the information included in the
registration statement. For a more complete understanding of the offering of the securities, you should refer to the registration statement,
including its exhibits.
Unless the context otherwise requires, the terms
“we,” “us,” “our,” “Cadiz,” and “the Company” refer to Cadiz Inc., a Delaware
corporation, and its consolidated subsidiaries.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Information presented in this prospectus, any accompanying
prospectus supplement and any free writing prospectus prepared by or on behalf of us or to which we have referred you, and in other documents
which are incorporated by reference in this prospectus under the sections of this prospectus entitled “Where You Can Find More Information”
and “Information Incorporated by Reference,” that discusses financial projections, information or expectations about our business
plans, results of operations, products or markets, or otherwise makes statements about future events, are forward-looking statements.
Forward-looking statements can be identified by the use of words such as “intends,” “anticipates,” “believes,”
“estimates,” “projects,” “forecasts,” “expects,” “plans,” and “proposes.”
Although we believe that the expectations reflected in these forward-looking statements are based on reasonable assumptions, there are
a number of risks and uncertainties that could cause actual results to differ materially from these forward-looking statements. Factors
that could cause actual results to differ from those discussed in the forward-looking statements include, but are not limited to:
| ● | our ability to make timely payments of principal and interest
on our indebtedness; |
| ● | our ability to obtain additional financing necessary to implement
our asset development programs; |
| ● | our ability to generate significant revenue from water resource
(supply, storage and conveyance), water filtration and agricultural development; |
| ● | the risk of variable water supplies and changing water allocation
priorities; |
| ● | our ability to fulfill required contractual conditions of
any water supply agreements; |
| ● | our ability to complete needed construction for water delivery
to occur; |
| ● | our ability to obtain all necessary regulatory approvals and
permits for our development projects; |
| ● | litigation by community, environmental or other groups regarding
our development projects; |
| ● | unforeseen technical difficulties; and |
| ● | general market conditions and competition for agriculture,
water filtration products and water supplies, and the time needed to generate significant operating revenues from such programs after
contracts are secured, crops are planted or operations commence. |
When considering forward-looking statements in
this prospectus, you should also keep in mind the cautionary statements in the “Risk Factors” section and other sections of
this prospectus, and other cautionary statements in any accompanying prospectus supplement and any free writing prospectus prepared by
or on behalf of us or to which we have referred you and any documents which are incorporated by reference in this prospectus and listed
in “Where You Can Find More Information” and “Information Incorporated by Reference” beginning on pages
27 and 28, respectively.
Certain risks, uncertainties, and other factors
are incorporated herein by reference to our most recent Annual Report on Form 10-K and our subsequent Quarterly Reports on Form 10-Q,
along with the other information contained in this prospectus, as updated by our subsequent filings under the Securities Exchange Act
of 1934, as amended, or the “Exchange Act.” Except as otherwise required by applicable securities laws, we undertake no obligation
to publicly update or revise any forward-looking statements, whether as a result of new information, future events, changed circumstances,
or any other reason, after the date of this prospectus.
THE COMPANY
About Cadiz
We are a water solutions provider with a unique
combination of land, water, pipeline and water filtration technology assets located in Southern California between major water systems
serving population centers in the Southwestern United States. Our portfolio of assets includes 2.5 million acre-feet of water supply (permits
complete), 220 miles of existing, buried pipeline, 1 million acre-feet of groundwater storage capacity, and versatile, scalable and cost-effective
water filtration technology. We will provide products and services to public water systems, government agencies and commercial clients.
We own approximately 46,000 acres of land with
high-quality, naturally recharging groundwater resources in Southern California’s Mojave Desert. Our land holdings with vested water
rights were assembled by our founders in the early 1980s, relying on NASA imagery that identified a desert aquifer system at the base
of a vast Southern California watershed which holds 30 - 50 million acre-feet of groundwater in storage – comparable in size to
the largest reservoir in the United States, Lake Mead.
In 2008, we entered into a 99-year lease with the
Arizona & California Railroad Company that will allow us to co-locate and construct a 43-mile water conveyance pipeline within an
existing, active railroad right-of-way that extends from the Cadiz Ranch to the Colorado River Aqueduct, one of Southern California’s
primary sources of water supply.
In 2021, we completed the acquisition of a 30”
steel natural gas pipeline that extends 220-miles from the Cadiz Ranch across Kern and San Bernardino Counties terminating in California’s
Central Valley. The pipeline, originally constructed to transport fossil fuels, is idle, and we are preparing to convert the pipeline
to transport water. The route of the Northern Pipeline intersects several water conveyance facilities that serve Southern California,
including the California Aqueduct, the Los Angeles Aqueduct, and the Mojave River Pipeline.
In 2022, we completed the acquisition of the assets
of ATEC Systems, Inc., a producer of specialized filtration systems for removal of common groundwater contaminants that pose health risks
in drinking water, including iron, manganese, arsenic, nitrates, Chromium 6 and other constituents of concern.
Additional information about our business can be
found in our Annual Report on Form 10-K for the year ended December 31, 2023, filed with the Commission on March 28, 2024, and our subsequent
filings with the Commission.
Corporate Information
We are a Delaware corporation with our principal
executive offices located at 550 South Hope Street, Suite 2850, Los Angeles, California 90071. Our telephone number is (213) 271-1600.
We maintain a corporate website at www.cadizinc.com. Our website address provided in this prospectus is not intended to function as a
hyperlink and the information on our website is not, nor should it be considered, part of this prospectus or incorporated by reference
into this prospectus.
RISK FACTORS
An investment in our securities involves a high
degree of risk. Certain risks relating to us and our business are described under the headings “Business” and “Risk
Factors” in our Annual Report on Form 10-K for the year ended December 31, 2023, filed with the Commission on March 28, 2024, which
is incorporated by reference into this prospectus and any accompanying prospectus supplement and which you should carefully review and
consider, along with the other information contained in this prospectus and any accompanying prospectus supplement or incorporated by
reference herein, as updated by our subsequent filings under the Exchange Act, before making an investment in any of our securities.
Additional risks, as well as updates or changes
to the risks described in the documents incorporated by reference herein, may be included in any applicable prospectus supplement. Our
business, financial condition or results of operations could be materially adversely affected by any of these risks. The market or trading
price of our securities could decline due to any of these risks, and you may lose all or part of your investment. Prior to making a decision
to invest in our securities you should consider carefully the specific factors discussed under the caption “Risk Factors”
in the applicable prospectus supplement, together with any other information contained in the applicable prospectus supplement or appearing
or incorporated by reference in this prospectus.
In addition, please read the section of this prospectus
captioned “Special Note Regarding Forward-Looking Statements,” in which we describe additional uncertainties associated with
our business and the forward-looking statements included or incorporated by reference in this prospectus. Please note that additional
risks not presently known to us or that we currently deem immaterial may also impair our business and operations.
Investment in any securities offered pursuant to
this prospectus involves risks and uncertainties. If one or more of the events discussed in the risk factors were to occur, our business,
financial condition, results of operations or liquidity, as well as the value of an investment in our securities, could be materially
adversely affected.
You should carefully consider the risk factors
as well as the other information contained and incorporated by reference in this prospectus before deciding to invest.
USE OF PROCEEDS
Unless otherwise provided in the applicable prospectus
supplement, the net proceeds from the sale of the securities offered by this prospectus and each prospectus supplement, the “offered
securities,” will be used to further expand and accelerate development of our land, water supply, water storage, water conveyance
and water filtration technology assets which may include the development of our southern pipeline project or our northern pipeline project,
the establishment of related wellfield infrastructure on land owned by us and our subsidiaries, business development activities, capital
expenditures, working capital, the refinancing or repayment of existing indebtedness, the expansion of the business and acquisitions,
and general corporate purposes. If any of the net proceeds from the offered securities will be used for acquisitions, we will identify
the acquisition in the applicable prospectus supplement.
DESCRIPTION OF DEBT SECURITIES
This prospectus describes certain general terms
and provisions of the debt securities. The debt securities may constitute either senior or subordinated debt securities, and may also include convertible debt securities. We will issue any debt securities that will be senior debt under
an Indenture between us and a trustee, or the “Senior Indenture.” We will issue any debt securities that will be subordinated
debt under an Indenture between us and a trustee, or the “Subordinated Indenture.” This prospectus refers to the Senior Indenture
and the Subordinated Indenture individually as the “Indenture” and collectively as the “Indentures.” The form
of Senior Indenture and the form of Subordinated Indenture are included as exhibits to the registration statement of which this prospectus
forms a part. The term “trustee” refers to the trustee under each Indenture, as appropriate.
The Indentures are subject to and governed by
the Trust Indenture Act of 1939, as amended. The Indentures are substantially identical, except for the provisions relating to subordination,
which are included only in the Subordinated Indenture. The following summary of the material provisions of the Indentures and the debt
securities is not complete and is subject to, and is qualified in its entirety by reference to, all of the provisions of the Indentures,
each of which has been filed as an exhibit to the registration statement of which this prospectus is a part. We urge you to read the Indenture
that is applicable to you because it, and not the summary below, defines your rights as a holder of debt securities. You can obtain copies
of the Indentures by following the directions described under the heading “Where You Can Find More Information.”
General
The senior debt securities will rank equally with
all of our other unsubordinated debt. The subordinated debt securities will be subordinated in right of payment to our “Senior Indebtedness,”
as defined below in the section titled “Subordination”. The Indentures do not limit the amount of debt, either secured or
unsecured, which may be issued by us under the Indentures or otherwise. We may limit the maximum total principal amount for the debt securities
of any series. However, any limit under the Indentures may be increased by resolution of our Board of Directors. We will establish the
terms of each series of debt securities under the Indentures in a supplemental Indenture, board resolution or company order. The debt
securities under the Indentures may be issued in one or more series with the same or various maturities and may be sold at par, a premium
or an original issue discount. Debt securities sold at an original issue discount may bear no interest or interest at a rate which is
below market rates.
The Indentures do not prohibit us or our subsidiaries
from incurring debt or agreeing to limitations on our subsidiaries’ ability to pay dividends or make other distributions to us,
although the terms of specific debt securities may include such limitations. The agreements governing our indebtedness contain limitations
on our ability to incur debt or liens, conduct asset sales and pay dividends.
Unless we inform you otherwise in a prospectus
supplement, we may issue additional debt securities of a particular series under the Indentures without the consent of the holders of
the debt securities of such series outstanding at the time of issuance. Any such additional debt securities, together with all other outstanding
debt securities of that series, will constitute a single series of securities under the applicable Indenture.
Unless we inform you otherwise in a prospectus
supplement, each series of our senior debt securities will rank equally in right of payment with all of our other unsubordinated debt.
The subordinated debt securities will rank junior in right of payment and be subordinate to all of our unsubordinated debt.
We may issue debt securities from time to time
in one or more series under the Indentures. We will describe the particular terms of each series of debt securities we offer in a supplement
to this prospectus or other offering material. The prospectus supplement and other offering material relating to a series of debt securities
will describe the terms of such debt securities being offered, including (to the extent such terms are applicable to such debt securities):
We will describe in the applicable prospectus supplement
the terms of the series of debt securities being offered, including:
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the title of the series of debt securities; |
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any limit upon the aggregate principal amount of the debt securities of that series that may be issued; |
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the maturity date or dates; |
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the form of the debt securities of the series; |
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the applicability of any guarantees; |
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whether or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
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whether the debt securities rank as senior debt, senior subordinated debt, subordinated debt or any combination thereof, and the terms of any subordination; |
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if the price (expressed as a percentage of the aggregate principal amount thereof) at which such debt securities will be issued is a price other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration of the maturity thereof, or if applicable, the portion of the principal amount of such debt securities that is convertible into another security or the method by which any such portion shall be determined; |
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the interest rate or rates, which may be fixed or variable, or the method for determining the rate or rates and the date interest will begin to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining such dates; |
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our right, if any, to defer payment of interest and the maximum length of any such deferral period; |
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if applicable, the date or dates after which, or the period or periods during which, and the price or prices at which, we may, at our option, redeem the series of debt securities pursuant to any optional or provisional redemption provisions and the terms of those redemption provisions; |
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the date or dates, if any, on which, and the price or prices at which we are obligated, pursuant to any mandatory sinking fund or analogous fund provisions or otherwise, to redeem, or at the holder’s option to purchase, the series of debt securities and the currency or currency unit in which the debt securities are payable; |
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the denominations in which we will issue the series of debt securities, if other than minimum denominations of $1,000 or any integral multiple in excess thereof; |
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any and all terms, if applicable, relating to any auction or remarketing of the debt securities of that series and any security for our obligations with respect to such debt securities and any other terms which may be advisable in connection with the marketing of debt securities of that series; |
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whether the debt securities of the series shall be issued in whole or in part in the form of a global security or securities, the terms and conditions, if any, upon which such global security or securities may be exchanged in whole or in part for certificated securities, and the depositary for such global security or securities; |
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if applicable, the provisions relating to conversion or exchange of any debt securities of the series and the terms and conditions upon which such debt securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional (at our option or the holders’ option) conversion or exchange features, the applicable conversion or exchange period and the manner of settlement for any conversion or exchange; |
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if other than the full principal amount thereof, the portion of the principal amount of debt securities of the series which shall be payable upon declaration of acceleration of the maturity thereof; |
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additions to or changes in the covenants applicable to the particular debt securities being issued, including, among others, the consolidation, merger or sale covenant; |
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additions to or changes in the events of default with respect to the securities and any change in the right of the trustee or the holders to declare the principal, premium, if any, and interest, if any, with respect to such securities to be due and payable; |
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additions to or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance; |
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additions to or changes in the provisions relating to satisfaction and discharge of the indenture; |
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additions to or changes in the provisions relating to the modification of the indenture both with and without the consent of holders of debt securities issued under the indenture; |
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the currency of payment of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars; |
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whether interest will be payable in cash or additional debt securities at our or the holders’ option and the terms and conditions upon which the election may be made; |
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the terms and conditions, if any, upon which we will pay amounts in addition to the stated interest, premium, if any, and principal amounts of the debt securities of the series to any holder that is not a “United States person” for federal tax purposes; |
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any restrictions on transfer, sale or assignment of the debt securities of the series; and |
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any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, any other additions or changes in the provisions of the indenture, and any terms that may be required by us or advisable under applicable laws or regulations. |
Conversion or Exchange Rights
We will set forth in the
applicable prospectus supplement the terms on which a series of debt securities may be convertible into or exchangeable for our common
stock or our other securities. We will include provisions as to settlement upon conversion or exchange and whether conversion or exchange
is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of shares of our common
stock or our other securities that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise
in the prospectus supplement applicable to a particular series of debt securities, the indenture will not contain any covenant that restricts
our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of our assets as an entirety or substantially as an
entirety. However, any successor to or acquirer of such assets (other than a subsidiary of ours) must assume all of our obligations under
the indenture or the debt securities, as appropriate.
Events of Default under the Indenture
Unless we provide otherwise
in the prospectus supplement applicable to a particular series of debt securities, the following are events of default under the indenture
with respect to any series of debt securities that we may issue:
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if we fail to pay any installment of interest on that series of debt securities, as and when the same shall become due and payable, and such default continues for a period of 90 days; provided, however, that a valid extension of an interest payment period by us in accordance with the terms of any indenture supplemental thereto shall not constitute a default in the payment of interest for this purpose; |
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if we fail to pay the principal of, or premium, if any, on that series of debt securities as and when the same shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by any sinking or analogous fund established with respect to such series; provided, however, that a valid extension of the maturity of such debt securities in accordance with the terms of any indenture supplemental thereto shall not constitute a default in the payment of principal or premium, if any; |
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if we fail to observe or perform any other covenant or agreement contained in the debt securities or the indenture, other than a covenant specifically relating to another series of debt securities, and our failure continues for 90 days after we receive written notice of such failure, requiring the same to be remedied and stating that such is a notice of default thereunder, from the trustee or holders of at least 25% in aggregate principal amount of the outstanding debt securities of the applicable series; and |
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if specified events of bankruptcy, insolvency or reorganization occur. |
If an event of default
with respect to debt securities of any series occurs and is continuing, other than an event of default specified in the last bullet point
above, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series, by
notice to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid principal of, premium, if any,
and accrued interest, if any, due and payable immediately. If an event of default specified in the last bullet point above occurs with
respect to us, the principal amount of and accrued interest, if any, of each issue of debt securities then outstanding shall be due and
payable without any notice or other action on the part of the trustee or any holder.
The holders of a majority
in principal amount of the outstanding debt securities of an affected series may waive any default or event of default with respect to
the series and its consequences, except defaults or events of default regarding payment of principal, premium, if any, or interest, unless
we have cured the default or event of default in accordance with the indenture. Any waiver shall cure the default or event of default.
Subject to the terms of
the indenture, if an event of default under the indenture shall occur and be continuing, the trustee will be under no obligation to exercise
any of its rights or powers under the indenture at the request or direction of any of the holders of the applicable series of debt securities,
unless such holders have offered, and if requested, provided, indemnity or security satisfactory to the trustee against the costs, expenses
and liabilities to be incurred in compliance with such request. The holders of a majority in principal amount of the outstanding debt
securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available
to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities of that series, provided
that:
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the direction so given by the holders is not in conflict with any law or the applicable indenture; and |
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subject to its duties under the Trust Indenture Act, the trustee need not take any action that might involve it in personal liability or might be unduly prejudicial to the holders not involved in the proceeding. |
A holder of the debt securities
of any series will have the right to institute a proceeding under the indenture or to appoint a receiver or trustee, or to seek other
remedies only if:
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the holder has given written notice to the trustee of a continuing event of default with respect to that series; |
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the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made written request; |
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such holders have offered, and if requested, provided, to the trustee indemnity or security satisfactory to it against the costs, expenses and liabilities to be incurred by the trustee in compliance with the request; and |
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the trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and offer or request of indemnity. |
These limitations do not
apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium, if any, or interest
on, the debt securities.
We will periodically file
statements with the trustee regarding our compliance with specified covenants in the indenture.
Modifications of Indenture; Waiver
We and the trustee may
change an indenture without the consent of any holders with respect to specific matters:
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to cure any ambiguity, defect or inconsistency in the indenture or in the debt securities of any series; |
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to comply with the provisions described above under “Description of Debt Securities—Consolidation, Merger or Sale;” |
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to provide for uncertificated debt securities in addition to or in place of certificated debt securities; |
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to add to our covenants, restrictions, conditions or provisions such new covenants, restrictions, conditions or provisions for the benefit of the holders of all or any series of debt securities, to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions an event of default or to surrender any right or power conferred upon us in the indenture; |
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to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication and delivery of debt securities, as set forth in the indenture; |
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to make any change that does not adversely affect the rights of any holder of debt securities of any series in any material respect; |
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to provide for the issuance of and establish the form and terms and conditions of the debt securities of any series as provided above under “Description of Debt Securities—General” to establish the form of any certifications required to be furnished pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the holders of any series of debt securities; |
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to evidence and provide for the acceptance of appointment under any indenture by a successor trustee; |
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to conform the text of the indenture, any supplemental indentures thereto and any forms of debt securities issued thereunder to the corresponding description of the debt securities contained in the applicable prospectus or prospectus supplement; or |
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to comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act. |
In addition, under the
indenture, the rights of holders of a series of debt securities may be changed by us and the trustee with the written consent of the holders
of at least a majority in aggregate principal amount of the outstanding debt securities of each series that is affected. However, unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, we and the trustee may make the
following changes only with the consent of each holder of any outstanding debt securities affected:
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extending the fixed maturity of any debt securities of any series; |
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reducing the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon the redemption of any series of any debt securities; or |
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reducing the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification or waiver. |
Discharge
Each indenture provides
that we can elect to be discharged from our obligations with respect to one or more series of debt securities, except for specified obligations,
including obligations to:
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provide for payment; |
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register the transfer or exchange of debt securities of the series; |
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replace stolen, lost or mutilated debt securities of the series; |
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pay principal of and premium and interest on any debt securities of the series; |
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maintain paying agencies; |
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hold monies for payment in trust; |
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recover excess money held by the trustee; |
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compensate, reimburse and indemnify the trustee; and |
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appoint any successor trustee. |
In order to exercise our
rights to be discharged, we must deposit with the trustee money or government obligations sufficient to pay all the principal of, the
premium, if any, and interest on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will issue the debt
securities of each series only in fully registered form without coupons and, unless we provide otherwise in the applicable prospectus
supplement, in minimum denominations of $1,000 or any integral multiple in excess thereof. The indenture provides that we may issue debt
securities of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of,
The Depository Trust Company or another depositary named by us and identified in the applicable prospectus supplement with respect to
that series. To the extent the debt securities of a series are issued in global form and as book-entry, a description of terms relating
to any book-entry securities will be set forth in the applicable prospectus supplement.
At the option of the holder,
subject to the terms of the indenture and the limitations applicable to global securities described in the applicable prospectus supplement,
the holder of the debt securities of any series in global form can exchange the debt securities for other debt securities of the same
series in definitive form, in any authorized denomination and of like tenor and aggregate principal amount.
Subject to the terms of
the indenture and the limitations applicable to global securities set forth in the applicable prospectus supplement, holders of the debt
securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed
thereon duly executed if so required by us or the security registrar, at the office of the security registrar or at the office of any
transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder presents for transfer
or exchange, we will impose no service charge for any registration of transfer or exchange, but we may require payment of any taxes or
other governmental charges.
We will name in the applicable
prospectus supplement the security registrar, and any transfer agent in addition to the security registrar, that we initially designate
for any debt securities. We may at any time designate additional security registrars or transfer agents or rescind the designation of
any security registrar or transfer agent or approve a change in the office through which any security registrar or transfer agent acts,
except that we will be required to maintain a security registrar and a transfer agent in each place of payment for the debt securities
of each series.
If we elect to redeem
the debt securities of any series, we will not be required to:
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issue, register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending at the close of business on the day of the mailing; or |
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register the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of any debt securities we are redeeming in part. |
Information Concerning the Trustee
The trustee, other than
during the occurrence and continuance of an event of default under the indenture, undertakes to perform only those duties as are specifically
set forth in the indenture. Upon an event of default under the indenture, the trustee must use the same degree of care as a prudent person
would exercise or use under the circumstances in the conduct of his or her own affairs. Subject to this provision, the trustee is under
no obligation to exercise any of the rights or powers given to it by the indenture at the request of any holder of debt securities unless
it is offered, and if requested, provided security or indemnity satisfactory to the trustee against the costs, expenses and liabilities
that it might incur.
Payment and Paying Agents
Unless we otherwise indicate
in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the
person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular
record date for the interest.
We will pay principal
of, and any premium and interest on, the debt securities of a particular series at the office of the paying agent(s) designated by us,
except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that we will
mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus supplement, we will
designate the corporate trust office of the trustee as our sole paying agent for payments with respect to debt securities of each series.
We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities of a
particular series. We may at any time rescind the designation of any paying agent or approve a change in the office through which any
paying agent acts, except that we will be required to maintain a paying agent in each place of payment for the debt securities of a particular
series.
Subject to applicable
abandoned property law, all money we pay to a paying agent or the trustee for the payment of the principal of, or any premium or interest
on, any debt securities that remains unclaimed at the end of two years after such principal, premium or interest has become due and payable
will be repaid to us, and the holder of the debt security thereafter may look only to us for payment thereof.
Governing Law
The indenture and the
debt securities will be governed by and construed in accordance with the laws of the State of New York, except to the extent that the
Trust Indenture Act is applicable.
Subordination of Subordinated Debt Securities
The subordinated debt
securities will be subordinate and junior in priority of payment to certain of our other indebtedness to the extent
described in a prospectus supplement.
DESCRIPTION OF CAPITAL STOCK
The following statements relating to our capital
stock do not purport to be complete, and are subject to, and are qualified in their entirety by reference to, the provisions of the Certificate
of Incorporation, as amended, or the “Certificate,” and By-Laws, as amended, or the “Bylaws,” which are incorporated
by reference as exhibits to the registration statement of which this prospectus is a part.
General
The Certificate authorizes a total of 100,100,000
shares of capital stock, of which 100,000,000 may be shares of common stock, par value $0.01 per share, and 100,000 may be shares of preferred
stock, par value $0.01 per share. We have designated 10,000 shares of our preferred stock as Series 1 Preferred Stock and 7,500 shares
of our preferred stock as the 8.875% Series A Cumulative Perpetual Preferred Stock (the “Series A Preferred Stock”).
As of August 9, 2024, we have the following
securities issued and outstanding:
| ● | 67,896,161 shares of common stock; |
| ● | 329 shares of Series 1 Preferred Stock, which are convertible into 133,261 shares of common stock; |
| ● | 2,300 shares of Series A Preferred Stock, represented by depositary shares (each representing a 1/1000th fractional interest in a
share of Series A Preferred Stock) (the “Depositary Shares”); |
| ● | warrants to purchase 1,000,000 shares of common stock issued to certain lenders; |
| ● | options to purchase or restricted stock units totaling an aggregate of 1,954,480 shares of common stock issued to directors, officers,
employees and consultants; |
| ● | unsecured convertible loans in a principal amount of approximately $16.3 million with a maturity date of June 30, 2027, which are
convertible into up to approximately 4,262,174 shares of common stock including interest thereon through maturity; |
| ● | secured convertible loans in a principal amount of approximately $20.1 million with a maturity date of June 30, 2027, which are convertible
into up to approximately 5,119,067 shares of common stock including interest thereon through maturity. |
Common Stock
Subject to the rights of the holders of any shares
of preferred stock that may at the time be outstanding, record holders of common stock are entitled to such dividends as the Board of
Directors may declare. We do not anticipate declaring or paying cash dividends on our common stock for the foreseeable future. We expect
to use future earnings, if any, to fund business growth. Therefore, stockholders may not receive any funds absent a sale of their shares
of common stock.
Holders of common stock are entitled to one vote
for each share held in their name on all matters submitted to a vote of stockholders and do not have preemptive rights or cumulative voting
rights. Holders of common stock are not subject to further calls or assessments as a result of their holding shares of common stock.
Upon our voluntary or involuntary liquidation,
dissolution or winding up, the holders of shares of common stock are entitled to share ratably in the distribution remaining after payment
of debts and expenses and of the amounts to be paid on liquidation to the holders of shares of preferred stock.
The transfer agent for our common stock is Continental
Stock Transfer & Trust Company, New York, New York.
Series 1 Preferred Stock
On March 5, 2020, we filed a Certificate of Designation
of Series 1 Preferred Stock with the Secretary of State of the State of Delaware to designate 10,000 shares of our preferred stock, par
value $0.01 per share, as Series 1 Preferred Stock.
We issued the shares of Series 1 Preferred Stock
pursuant to Conversion and Exchange Agreements, dated March 5, 2020, between us and two of our stockholders, in exchange for the satisfaction
of an outstanding aggregate amount payable under our 7.00% Convertible Senior Notes due 2020.
The following is a brief description of our Series
1 Preferred Stock:
Ranking and Liquidation. Prior to March
5, 2025, or the “Mandatory Conversion Date”, subject to applicable law and the rights of the holders of any other outstanding
series of our preferred stock, in the event of our voluntary or involuntary liquidation, dissolution or winding up, each share of Series
1 Preferred Stock will be entitled to receive an amount in cash equal to $2,734.09 per share (as may be adjusted for any dividends of
shares of Series 1 Preferred Stock, subdivision of the outstanding shares of Series 1 Preferred Stock or combination of the outstanding
shares of Series 1 Preferred Stock), before any payment may be made to holders of our common stock or any outstanding series of our preferred
stock junior in liquidation preference to the Series 1 Preferred Stock. In addition, prior to the Mandatory Conversion Date, subject to
applicable law and the rights of the holders of any other outstanding series of our preferred stock, holder of shares of Series 1 Preferred
Stock will be entitled to participate pro rata on an as-converted into common stock basis with all of our common stock in the distribution
of any remaining proceeds from the voluntary or involuntary liquidation, dissolution or winding up. After the Mandatory Conversion Date,
subject to applicable law and the rights of the holders of any outstanding series of our preferred stock, holders of shares of Series
1 Preferred Stock will not receive any preference and will only be entitled to participate pro rata on an as-converted into common stock
basis with all of our common stock in the distribution of any remaining proceeds from the voluntary or involuntary liquidation, dissolution
or winding up.
Conversion. Each share of Series 1 Preferred
Stock is convertible at any time at the option of the holder into 405.05 shares of our common stock (the “Conversion Rate”),
provided that the holder will be prohibited from converting shares of Series 1 Preferred Stock into shares of our common stock if, as
a result of such conversion, the holder, together with its affiliates, would beneficially own more than 9.9% of the total number of shares
of our common stock then issued and outstanding after giving effect to such conversion. On the Mandatory Conversion Date, each share of
Series 1 Preferred Stock will automatically convert into shares of our common stock at the Conversion Rate then in effect; provided, that
the shares of Series 1 Preferred Stock will not automatically convert shares of our common stock to the extent that, as a result of such
conversion, the holder, together with its affiliates, would beneficially own more than 9.9% of the total number of shares of our common
stock then issued and outstanding after giving effect to such conversion. Any shares of Series 1 Preferred Stock that remain outstanding
after the Mandatory Conversion Date as a result of such limitations will be convertible at any time thereafter, at the option of the holder,
subject to the beneficial ownership limitations in the Certificate of Designation of Series 1 Preferred Stock.
Voting Rights. Prior to the Mandatory Conversion
Date, except as provided by applicable law, each share of Series 1 Preferred Stock will be entitled to 301.98 votes (the “Voting
Rate”) on all matters on which stockholders are generally entitled to vote (provided that no holder of shares of Series 1 Preferred
Stock will be entitled to such number of votes in excess of such holder’s beneficial ownership limitation). Additionally, prior
to the Mandatory Conversion Date, the vote or written consent of holders of a majority of the outstanding shares of Series 1 Preferred
Stock, voting separately as a single class, will be required for certain amendments to our Certificate, to liquidate us, to incur certain
indebtedness other than permitted indebtedness, to enter into certain affiliate transactions, to issue additional shares of Series 1 Preferred
Stock and to issue any capital stock senior or having parity in preference to the Series 1 Preferred Stock, other than preferred shares
that may be issued in one or more financing transactions as an alternative to our incurring, and which the gross proceeds of shall be
offset against, permitted indebtedness. Permitted indebtedness over which the holders of shares of Series 1 Preferred Stock will have
no voting rights consists of (i) our existing debt as of March 5, 2020 and the refinancing of such debt, (ii) up to $600 million of debt
that we may incur related to our southern pipeline project or our northern pipeline project (collectively, the “Pipeline Water Projects”),
(iii) the establishment of related infrastructure and farming costs for developing agriculture on
land owned by us and our subsidiaries (the “Farming Project”), (iv) working capital for the Pipeline Water Projects, the Farming
Project or general corporate purposes, and (v) a refinancing of any of the debt described in this sentence related to the Pipeline
Water Projects. After the Mandatory Conversion Date, the shares of Series 1 Preferred Stock will have no voting rights, except as required
by applicable law.
Dividends. Prior to the Mandatory Conversion
Date, the holders of shares of Series 1 Preferred Stock will not be entitled to participate in any dividends or distributions. After the
Mandatory Conversion Date, subject to the applicable law and the rights of the holders of any outstanding series of our preferred stock,
shares of Series 1 Preferred Stock will rank pari passu on an as-converted to common stock basis with all of our common stock as
to dividends and distributions. However, holders of shares of Series 1 Preferred Stock will not be entitled to participate in dividends
consisting of shares of our common stock or other securities convertible into or exercisable for shares of our common stock to the extent
that, as a result of such dividend, the holder, together with its affiliates, would beneficially own more than 9.9% of the total number
of shares of our common stock then issued and outstanding after giving effect to such dividend.
Anti-Dilution. The Conversion Rate and the
Voting Rate are subject to proportionate adjustment upon the issuance by us of stock dividends, stock splits, and similar proportionately
applied changes affecting our outstanding shares of common stock.
Redemption. At any time after March 5, 2021,
we may redeem shares of Series 1 Preferred Stock by payment of an amount per share equal to $13.50 (as may be adjusted for any dividends
of shares of Series 1 Preferred Stock, subdivision of the outstanding shares of Series 1 Preferred Stock or combination of the outstanding
shares of Series 1 Preferred Stock) multiplied by the Conversion Rate then in effect; provided, that as to each holder of shares of Series
1 Preferred Stock, the number of shares redeemed must be at least 25% of the Preferred Shares originally issued to such holder. There
will be no restriction on the redemption of the shares of Series 1 Preferred Stock while there is any arrearage in the payment of dividends.
Rights as a Stockholder. Except as otherwise
provided in the Certificate of Designation of Series 1 Preferred Stock, or by virtue of such holder’s ownership of shares of our
common stock, the holders of shares of Series 1 Preferred Stock do not have the rights or privileges of holders of shares of our common
stock, until they convert their shares of Series 1 Preferred Stock into our common stock.
Amendments. Certain terms of the Series
1 Preferred Stock may be amended or modified with the vote or written consent of the holders of a majority of the then-outstanding shares
of Series 1 Preferred Stock.
The 8.875% Series A Cumulative Perpetual Preferred Stock and the
Depositary Shares
On July 1, 2021, we filed a Certificate of Designation
of 8.875% Series A Cumulative Perpetual Preferred Stock with the Secretary of State of the State of Delaware to designate 7,500 shares
of our preferred stock, par value $0.01 per share, as Series A Preferred Stock.
In July 2021, we completed the sale of 2,300,000
Depositary Shares, each representing 1/1000th of a share of Series A Preferred Stock, for net proceeds of approximately $54 million.
Our Depositary Shares are listed on the Nasdaq
Global Market under the symbol “CDZIP.”
The following is a brief description of our Series
A Preferred Stock:
Ranking and
Liquidation. The Series A Preferred Stock represented by the Depositary Shares will rank, as to dividend rights and rights upon liquidation,
dissolution or winding up:
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senior to all classes or series of our common stock and to each other class or series of capital stock issued by us other than any class or series of capital stock issued with terms specifically providing that such securities rank senior to or on a parity with the Series A Preferred Stock; provided, however, that the Series A Preferred Stock shall rank junior to the Series 1 Preferred Stock with respect to the distribution of assets upon our voluntary or involuntary liquidation, dissolution or winding up; |
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(2) |
on a parity with each class or series of capital stock issued by us with terms specifically providing that such securities rank on a parity with the Series A Preferred Stock with respect to the declaration and payment of dividends and the distribution of assets upon our voluntary or involuntary liquidation, dissolution or winding up; |
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(3) |
junior to each class or series of capital stock issued by us with terms specifically providing that such securities rank senior to the Series A Preferred Stock with respect to the declaration and payment of dividends and the distribution of assets upon our voluntary or involuntary liquidation, dissolution or winding up, none of which exists on the original effective date of the certificate of designation for the Series A Preferred Stock except the Series 1 Preferred Stock, which ranks junior to the Series A Preferred Stock with respect to the payment of dividends and senior to the Series A Preferred Stock with respect to the distribution of assets upon our voluntary or involuntary liquidation, dissolution or winding up; and |
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(4) |
effectively junior to all our existing and future indebtedness (including indebtedness convertible into our common stock or preferred stock) and to the indebtedness and other liabilities of (as well as any preferred equity interests held by others in) our existing or future subsidiaries. |
Dividends. We will pay cumulative
cash dividends on the Series A Preferred Stock, when and as declared by the Board of Directors, at the rate of 8.875% of the $25,000.00
liquidation preference per share (equivalent to $25.00 per depositary share) per year (equivalent to $2,218.75 per share per year or $2.21875
per depositary share per year).
Dividends will be payable quarterly in
arrears, on or about the 15th day of January, April, July and October, beginning on or about October 15, 2021; provided that if any dividend
payment date is not a business day, then the dividend which would otherwise have been payable on that dividend payment date may be paid
on the immediately preceding or next succeeding business day, and if paid on the next succeeding business day, no interest, additional
dividends or other sums will accumulate on the amounts so payable for the period from and after that dividend payment date to the next
succeeding business day. Dividends will accumulate and be cumulative from, and including, the date of original issuance. Dividends on
the Series A Preferred Stock underlying the depositary shares will continue to accumulate whether or not (i) any of our agreements prohibit
the current payment of dividends, (ii) we have earnings or funds legally available to pay the dividends, or (iii) our Board of Directors
does not declare the payment of the dividends.
Liquidation Preference. The liquidation
preference of each share of Series A Preferred Stock is $25,000.00 per share (equivalent to $25.00 per depositary share). Upon liquidation,
the holders of the Series A Preferred Stock will be entitled to receive the liquidation preference with respect to their shares of Series
A Preferred Stock plus an amount equal to accumulated but unpaid dividends with respect to such shares. For the avoidance of doubt the
Series 1 Preferred Stock shall be senior in liquidation preference to the Series A Preferred Stock.
Optional Redemption. We may not
redeem the Series A Preferred Stock represented by the depositary shares prior to July 2, 2026, the fifth anniversary of July 2, 2021,
except as described below under “Special Optional Redemption.” At any time on or after July 2, 2026, we may, at our option,
redeem the Series A Preferred Stock, in whole or from time to time in part, by paying $25,000.00 per share (equivalent to $25.00 per depositary
share), plus any accumulated and unpaid dividends up to, but not including, the date of redemption. This feature is referred to as an
“optional redemption.”
On or after the date fixed for redemption
of shares of Series A Preferred Stock, each holder of depositary shares representing interests in the Series A Preferred Stock to be redeemed
must present and surrender the depositary receipts evidencing the depositary shares to the depositary at the place designated in the notice
of redemption. The redemption price payable to such holder of depositary shares will then be paid to or on the order of the person whose
name appears on such depositary receipts as the owner thereof.
Special Optional
Redemption Upon a Change of Control or Delisting Event. Upon the occurrence of a Delisting Event (as defined below), we may, at our
option, redeem the Series A Preferred Stock represented by the depositary shares, in whole or in part, within 90 days after the first
date on which such Delisting Event occurred, for cash, at a redemption price of $25,000.00 per share (equivalent to $25.00 per depositary
share), plus any accrued and unpaid dividends to, but not including, the date of redemption, and the depositary will redeem a proportional
number of depositary shares representing the shares redeemed.
A “Delisting Event” occurs
when, after the original issuance of Series A Preferred Stock, both (i) the shares of Series A Preferred Stock (or the depositary shares)
are no longer listed on the New York Stock Exchange (the “NYSE”), the NYSE American LLC (“NYSE AMER”) or the Nasdaq
Stock Market LLC (“NASDAQ”), or listed or quoted on an exchange or quotation system that is a successor to the NYSE, the NYSE
AMER or NASDAQ, and (ii) we are not subject to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), but any shares of the Series A Preferred Stock are still outstanding.
Upon the occurrence of a Change of Control
(as defined below), we may, at our option, redeem the Series A Preferred Stock represented by the depositary shares, in whole or in part
within 120 days after the first date on which such Change of Control occurred, for cash, at a redemption price of $25,000.00 per share
(equivalent to $25.00 per depositary share), plus any accrued and unpaid dividends to, but not including, the date of redemption, and
the depositary will redeem a proportional number of depositary shares representing the shares redeemed.
A “Change of Control” occurs
when, after the original issuance of the Series A Preferred Stock, the following have occurred and are continuing:
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the acquisition by any person, including any syndicate or group deemed to be a “person” under Section 13(d)(3) of the Exchange Act, of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of purchases, mergers or other acquisition transactions of shares of any class or series of capital stock of the company entitling that person to exercise more than 50% of the total voting power of all shares of the company entitled to vote generally in elections of directors (except that such person will be deemed to have beneficial ownership of all securities that such person has the right to acquire, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition); and |
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following the closing of any transaction referred to in the bullet point above, neither we nor any acquiring or surviving entity (or if, in connection with such transaction shares of common stock are converted into or exchanged for (in whole or in part) common equity securities of another entity), has a class of common securities (or depositary receipts representing such securities) listed on the NYSE, the NYSE AMER or NASDAQ, or listed or quoted on an exchange or quotation system that is a successor to the NYSE, the NYSE AMER or NASDAQ |
We refer to a redemption
following a Delisting Event or Change of Control as a “special optional redemption.” If, prior to the Delisting Event Conversion
Date or the Change of Control Conversion Date, as applicable, we have provided or provide notice of exercise of any of our redemption
rights relating to the Series A Preferred Stock (whether our optional redemption right or our special optional redemption right), the
holders of depositary shares representing interests in the Series A Preferred Stock will not have the conversion right described below.
Conversion Rights. Upon the occurrence
of a Delisting Event or a Change of Control, as applicable, each holder of depositary shares representing interests in the Series A Preferred
Stock will have the right (unless, prior to the Delisting Event Conversion Date or Change of Control Conversion Date, as applicable, we
have provided or provide notice of our election to redeem the Series A Preferred Stock) to convert some or all of the Series A Preferred
Stock represented by the depositary shares held by such holder on the Delisting Event Conversion Date or Change of Control Conversion
Date, as applicable, into a number of shares of common stock (or equivalent value of alternative consideration) per depositary share equal
to the lesser of:
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the quotient obtained by dividing (1) the sum of the $25.00 per depositary share liquidation preference plus the amount of any accumulated and unpaid dividends to, but not including, the Delisting Event Conversion Date or Change of Control Conversion Date, as applicable (unless the Delisting Event Conversion Date or Change of Control Conversion Date, as applicable is after a record date for a Series A Preferred Stock dividend payment and prior to the corresponding Series A Preferred Stock dividend payment date, in which case no additional amount for such accumulated and unpaid dividend will be included in this sum) by (2) the Common Stock Price (as defined in herein); and |
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3.74813 (i.e., the Share Cap), subject to certain adjustments; |
and subject, in each case, to the certain
conditions, including, under specified circumstances, an aggregate cap on the total number of shares of common stock issuable upon conversion
and to provisions for the receipt of alternative consideration.
If, prior to the Delisting Event Conversion
Date or Change of Control Conversion Date, as applicable, we have provided or provide a redemption notice, whether pursuant to our special
optional redemption right or our optional redemption right, holders of depositary shares representing interests in the Series A Preferred
Stock will not have any right to convert the underlying Series A Preferred Stock, and any Series A Preferred Stock subsequently selected
for redemption that has been tendered for conversion will be redeemed on the related date of redemption instead of converted on the Delisting
Event Conversion Date or Change of Control Conversion Date, as applicable.
Except as provided above in connection
with a Delisting Event or Change of Control, shares of the Series A Preferred Stock are not convertible into or exchangeable for any other
securities or property. Because each depositary share represents a 1/1000th interest in a share of the Series A Preferred Stock, the number
of shares of common stock ultimately received for each depositary share will be equal to the number of shares of common stock received
upon conversion of each share of Series A Preferred Stock divided by 1,000. In the event that the conversion would result in the issuance
of fractional shares of common stock, we will pay the holder of depositary shares cash in lieu of such fractional shares.
For purposes of
this description of the Series A Preferred Stock and the underlying Depositary Shares, “Change of Control Conversion Date”
means a business day fixed by our board of directors that is not fewer than 20 days nor more than 35 days after the date on which we provide
the notice described above to the holders of the Depositary Shares representing interests in the Series A Preferred Stock.
For purposes of this description of the
Series A Preferred Stock and the underlying Depositary Shares, “Common Stock Price” for any Change of Control will be: (1)
if the consideration to be received in the Change of Control by the holders of our common stock is solely cash, the amount of cash consideration
per share of common stock; and (2) if the consideration to be received in the Change of Control by holders of our common stock is other
than solely cash (x) the average of the closing prices for our common stock on the principal U.S. securities exchange on which our common
stock is then traded (or, if no closing sale price is reported, the average of the closing bid and ask prices per share or, if more than
one in either case, the average of the average closing bid and the average closing ask prices per share) for the ten consecutive trading
days immediately preceding, but not including, the date on which such Change of Control occurred as reported on the principal U.S. securities
exchange on which our common stock is then traded, or (y) the average of the last quoted bid prices for our common stock in the over-the-counter
market as reported by OTC Markets Group Inc. or similar organization for the ten consecutive trading days immediately preceding, but not
including, the date on which such Change of Control occurred, if our common stock is not then listed for trading on a U.S. securities
exchange. The “Common Stock Price” for any Delisting Event will be the average of the closing price per share of our Common
Stock on the 10 consecutive trading days immediately preceding, but not including, the effective date of the Delisting Event.
For purposes of this description of the
Series A Preferred Stock and the underlying Depositary Shares, “Delisting Event Conversion Date” means a business day fixed
by our board of directors that is not fewer than 20 days nor more than 35 days after the date on which we provide the notice described
above to the holders of the Depositary Shares representing interests in the Series A Preferred Stock.
Voting Rights. Holders of Depositary
Shares representing interests in the Series A Preferred Stock generally will have no voting rights. However, if we do not pay dividends
on any outstanding shares of Series A Preferred Stock for six or more quarterly dividend periods (whether or not declared or consecutive),
holders of the Series A Preferred Stock (voting separately as a class with all other outstanding series of preferred stock upon which
like voting rights have been conferred and are exercisable) will be entitled to elect two additional directors to the Board of Directors
to serve until all unpaid dividends have been fully paid or declared and set apart for payment. In addition, certain material and adverse
changes to the terms of the Series A Preferred Stock cannot be made without the affirmative vote of holders of at least 66 2/3% of the
outstanding shares of Series A Preferred Stock, voting as a separate class.
Depositary. Continental Stock
Transfer & Trust Company, located at 1 State Street 30th Floor, New York, New York.
Future Classes or Series of Preferred Stock
This following description sets forth certain general
terms and provisions of our authorized preferred stock, other than our Series 1 Preferred Stock and Series A Preferred Stock described
above. When we offer to sell a particular series of preferred stock, we will describe the specific terms of the securities in a supplement
to this prospectus. The prospectus supplement will also indicate whether the general terms and provisions described in this prospectus
apply to the particular series of preferred stock. The preferred stock will be issued under a certificate of designations relating to
each series of preferred stock and is also subject to our Certificate. The certificate of designations will be filed with the SEC in connection
with an offering of preferred stock.
Under the Certificate, our Board of Directors has
the authority to:
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create one or more series of preferred stock, |
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issue shares of preferred stock in any series up to the maximum number of shares of preferred stock authorized, and |
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determine the preferences, rights, privileges and restrictions of any series. |
Our Board of Directors may issue authorized shares
of preferred stock, as well as authorized but unissued shares of common stock, without further stockholder action, unless stockholder
action is required by applicable law or by the rules of a stock exchange or quotation system on which any series of our stock may be listed
or quoted.
The prospectus supplement will describe the terms
of any preferred stock being offered, including:
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the number of shares and designation or title of the shares; |
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any liquidation preference per share; |
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any date of maturity; |
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any redemption, repayment or sinking fund provisions; |
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any dividend rate or rates and the dates of payment (or the method for determining the dividend rates or dates of payment); |
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any voting rights; |
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if other than the currency of the United States, the currency or currencies including composite currencies in which the preferred stock is denominated and/or in which payments will or may be payable; |
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the method by which amounts in respect of the preferred stock may be calculated and any commodities, currencies or indices, or value, rate or price, relevant to such calculation; |
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whether the preferred stock is convertible or exchangeable and, if so, the securities or rights into which the preferred stock is convertible or exchangeable, and the terms and conditions of conversion or exchange; |
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the place or places where dividends and other payments on the preferred stock will be payable; and |
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any additional voting, dividend, liquidation, redemption, preemption, transfer restrictions, and other rights, preferences, privileges, limitations and restrictions. |
All shares of preferred stock offered will be fully
paid and non-assessable. Any shares of preferred stock that are issued will have priority over the common stock with respect to dividend
or liquidation rights or both.
Our Board of Directors could create and issue a
series of preferred stock with rights, privileges or restrictions which effectively discriminate against an existing or prospective holder
of preferred stock as a result of the holder beneficially owning or commencing a tender offer for a substantial amount of common stock.
One of the effects of authorized but unissued and unreserved shares of capital stock may be to make it more difficult or discourage an
attempt by a potential acquirer to obtain control of our company by means of a merger, tender offer, proxy contest or otherwise. This
protects the continuity of our management. The issuance of these shares of capital stock may defer or prevent a change in control of our
company without any further stockholder action.
The transfer agent for each series of preferred
stock will be described in the prospectus supplement.
Indemnification of Directors and Officers
Our Bylaws and Certificate provide that we will
indemnify any of our directors, officers or employees to the fullest extent permitted by the General Corporation Law of the State of Delaware
against all expenses, liability and loss incurred in connection with any action, suit or proceeding in which any such person may be involved
by reason of the fact that he or she is or was our director, officer or employee. We carry insurance policies in standard form indemnifying
our directors and officers against liabilities arising from certain acts performed by them in their capacities as our directors and officers.
These policies also indemnify us for any sums we may be required or permitted to pay by law to our directors and officers as indemnification
for expenses they may have incurred.
Exchange Listing
Our common stock is listed on the Nasdaq Global
Market under the symbol “CDZI.”
Anti-Takeover Effects of Delaware Law and Certain Provisions of
our Charter Documents
The following is a summary of the General Corporation
Law of the State of Delaware, our Certificate and our Bylaws. This summary does not purport to be complete and is qualified in its entirety
by reference to the General Corporation Law of the State of Delaware, our Certificate and our Bylaws, as applicable.
Our Certificate and our Bylaws include provisions
that may have the effect of discouraging, delaying or preventing a change in control or an unsolicited acquisition proposal that a stockholder
might consider favorable, including a proposal that might result in the payment of a premium over the market price for the shares held
by our stockholders. These provisions are summarized in the following paragraphs.
Limitation on Directors’ Liability.
Delaware law permits a corporation to, by provision of its certificate of incorporation, eliminate the personal liability of its directors
to the corporation or to any of its stockholders for monetary damages for a breach of fiduciary duty as a director, except (i) for breach
of the director’s duty of loyalty, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) for certain unlawful dividends and stock repurchases or (iv) for any transaction from which the director derived
an improper personal benefit. Our Certificate contains such a provision.
This provision of our Certificate offers persons
who serve on our Board of Directors protection against awards of monetary damages resulting from certain breaches of their fiduciary duty,
including grossly negligent business decisions made in connection with, among other things, takeover proposals for us, and may limit our
ability or the ability of one of our stockholders to prosecute an action against a director for a breach of fiduciary duty.
Special Meeting of Stockholders. Our Certificate
prohibits stockholder action by written consent in lieu of a meeting of stockholders. Further, special meetings of stockholders may be
called only by our Board of Directors, Chief Executive Officer or President. In addition, our Bylaws contain advance notice procedures
for stockholders seeking to bring business before the annual meeting of stockholders or to nominate candidates for election as directors
at the annual meeting of stockholders, and specify certain requirements regarding the form and content of a stockholder’s notice.
The foregoing could have the effect of delaying or preventing unsolicited takeovers and changes in control or changes in our Board of
Directors.
Effects of authorized but unissued common stock
and blank check preferred stock. One of the effects of the existence of authorized but unissued common stock may be to enable our
Board of Directors to make more difficult or to discourage an attempt to obtain control of our company by means of a merger, tender offer,
proxy contest or otherwise, and thereby to protect the continuity of our Board of Directors. If, in the due exercise of its fiduciary
obligations, our Board of Directors were to determine that a takeover proposal was not in our best interest, authorized but unissued shares
of common stock could be issued by our Board of Directors without stockholder approval in one or more transactions that might prevent
or render more difficult or costly the completion of the takeover transaction by diluting the voting or other rights of the proposed acquirer
or insurgent stockholder group, by putting a substantial voting block in institutional or other hands that might undertake to support
the position of the incumbent Board of Directors, by effecting an acquisition that might complicate or preclude the takeover, or otherwise.
In addition, our Certificate grants our Board of
Directors “blank check” power, which includes the power to create and establish the rights and preferences of one or more
series of preferred stock out of our authorized and unissued shares of preferred stock. One of the effects of the “blank check”
power may be to enable our Board of Directors to make more difficult or discourage an attempt to obtain control of our company as described
above. If, in the due exercise of its fiduciary obligations, our Board of Directors were to determine that a takeover proposal was not
in our best interests, one or more series of preferred stock could be created and shares thereof issued, without stockholder approval,
which action may prevent or render more difficult or costly the completion of the takeover transaction as described above. The creation
of one or more series of preferred stock and the issuance of shares of such preferred stock could also decrease the amount of earnings
and assets available for distribution to holders of shares of common stock. The issuance also may adversely affect the rights and powers,
including voting rights, of those holders.
Cumulative Voting. Our Certificate does
not provide for cumulative voting in the election of directors which would allow holders of less than a majority of the stock to elect
some directors.
Vacancies. Our Certificate provides that
all vacancies, including newly created directorships, may be filled only by a majority vote of the directors then in office, though less
than a quorum.
Anti-Takeover Effects of Delaware Law. We
are subject to the “business combination” provisions of Section 203 of the General Corporation Law of the State of Delaware.
In general, such provisions prohibit a publicly held Delaware corporation from engaging in various “business combination”
transactions with any interested stockholder for a period of three years after the date of the transaction in which the person became
an interested stockholder, unless:
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prior to the date the interested stockholder obtained such status, the board of directors of the corporation approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder; |
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upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced (excluding certain outstanding voting stock); or |
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on or subsequent to such date, the business combination is approved by the board of directors of the corporation and authorized at an annual or special meeting of stockholders by the affirmative vote of at least 66 2/3% of the outstanding voting stock which is not owned by the interested stockholder. |
A “business combination” is defined
to include mergers, asset sales and other transactions resulting in financial benefit to an interested stockholder. In general, an “interested
stockholder” is a person who, together with affiliates and associates, owns (or within three years, did own) 15% or more of a corporation’s
voting stock. Section 203 of the General Corporation Law of the State of Delaware could prohibit or delay mergers or other takeover or
change in control attempts with respect to Cadiz and, accordingly, may discourage attempts to acquire Cadiz even though such a transaction
may offer our stockholders the opportunity to sell their stock at a price above the prevailing market price.
DESCRIPTION OF DEPOSITARY SHARES
We may offer depositary shares, which will be evidenced
by depositary receipts, representing fractional interests in shares of preferred stock of any series. In connection with the issuance
of any depositary shares, we will enter into a deposit agreement with a bank or trust company, as depositary, which will be named in the
applicable prospectus supplement. The following briefly summarizes the material provisions of the deposit agreement and of the depositary
shares and depositary receipts, other than pricing and related terms disclosed for a particular issuance in an accompanying prospectus
supplement. This description is not complete and is subject to, and qualified in its entirety by reference to, all provisions of the deposit
agreement, depositary shares and depositary receipts. You should read the particular terms of any depositary shares and any depositary
receipts that we offer and any deposit agreement relating to a particular series of preferred stock described in more detail in a prospectus
supplement. The prospectus supplement will also state whether any of the generalized provisions summarized below do not apply to the depositary
shares or depositary receipts being offered.
General
We may, at our option, elect to offer fractional
shares of preferred stock, rather than full shares of preferred stock. In such event, we will issue receipts for depositary shares, each
of which will represent a fraction of a share of a particular series of preferred stock. For a description of our preferred stock, see
“Description of Capital Stock—Series 1 Preferred Stock” and “Description of Capital Stock—The 8.875% Series
A Cumulative Perpetual Preferred Stock and the Depositary Shares.”
The shares of any series of preferred stock represented
by depositary shares will be deposited under a deposit agreement between us and the depositary we select. Each owner of a depositary share
will be entitled to all the rights and preferences of the underlying preferred stock, including any dividend, voting, redemption, conversion
and liquidation rights described in the particular prospectus supplement, in proportion to the applicable fraction of a share of preferred
stock represented by such depositary share.
The depositary shares will be evidenced by depositary
receipts issued pursuant to the deposit agreement. Depositary receipts will be distributed to those persons purchasing the fractional
shares of preferred stock in accordance with the terms of the applicable prospectus supplement.
Dividends and Other Distributions
The preferred stock depositary will distribute
all cash dividends or other cash distributions, if any, received in respect of the deposited preferred stock to the record holders of
depositary shares relating to the preferred stock in proportion to the number of depositary shares owned by such holders on the relevant
record date.
In the case of a distribution other than in cash,
the preferred stock depositary will distribute any property received by it other than cash to the record holders of depositary shares
entitled to receive it in proportion to the number of depositary shares owned by such holder. If the preferred stock depositary determines
that it is not feasible to make such a distribution, it may, with our approval, sell the property and distribute the net proceeds from
the sale to the holders of the depositary shares.
The amounts distributed in any such distribution,
whether in cash or otherwise, will be reduced by any amount required to be withheld by us or the preferred stock depositary on account
of taxes.
Withdrawal of Preferred Stock
Unless otherwise indicated in the applicable prospectus
supplement and unless the related depositary shares have been called for redemption, when a holder surrenders depositary receipts at the
office of the preferred stock depositary maintained for that purpose, and pays any necessary taxes, charges or other fees, the holder
will be entitled to receive the number of whole shares of the related series of preferred stock, and any money or other property, if any,
represented by the holder’s depositary shares. Once a holder exchanges depositary shares for whole shares of preferred stock, that
holder generally cannot “re-deposit” these shares of preferred stock with the preferred stock depositary or exchange them
for depositary shares. If a holder delivers depositary receipts that represent a number of depositary shares other than a whole number
of shares of preferred stock for redemption or exchange, the preferred stock depositary will issue a new depositary receipt to the holder
that evidences the remainder of depositary shares at the same time that the preferred stock is withdrawn.
Redemption, Conversion and Exchange of Preferred Stock
If a series of preferred stock represented by depositary
shares is to be redeemed, the depositary shares will be redeemed from the proceeds received by the preferred stock depositary resulting
from the redemption, in whole or in part, of that series of preferred stock. The depositary shares will be redeemed by the preferred stock
depositary at a price per depositary share equal to the applicable fraction of the redemption price per share payable in respect of the
shares of preferred stock redeemed.
Whenever we redeem shares of preferred stock held
by the preferred stock depositary, the preferred stock depositary will redeem, as of the same date, the number of depositary shares representing
shares of preferred stock redeemed. If fewer than all the depositary shares are to be redeemed, the depositary shares to be redeemed will
be selected by the preferred stock depositary by lot or ratably or by any other equitable method, in each case as we may determine.
If a series of preferred stock represented by depositary
shares is to be converted or exchanged, the holder of depositary receipts representing the shares of preferred stock being converted or
exchanged will have the right or obligation to convert or exchange the depositary shares evidenced by the depositary receipts.
After the redemption, conversion or exchange date,
the depositary shares called for redemption, conversion or exchange will no longer be outstanding. When the depositary shares are no longer
outstanding, all rights of the holders will end, except the right to receive money, securities or other property payable upon redemption,
conversion or exchange.
Voting Deposited Preferred Stock
Upon receipt of notice of any meeting at which
the holders of any series of deposited preferred stock are entitled to vote, the preferred stock depositary will mail the information
contained in the notice of meeting to the record holders of the depositary receipts evidencing the depositary shares relating to that
series of preferred stock. Each record holder of the depositary receipts on the record date will be entitled to instruct the preferred
stock depositary to vote the amount of the preferred stock represented by the holder’s depositary shares. The preferred stock depositary
will try, if practical, to vote the amount of such series of preferred stock represented by such depositary shares in accordance with
such instructions.
We will agree to take all reasonable actions that
the preferred stock depositary determines are necessary to enable the preferred stock depositary to vote as instructed. The preferred
stock depositary will abstain from voting shares of any series of preferred stock held by it for which it does not receive specific instructions
from the holders of depositary shares representing those preferred shares.
Amendment and Termination of the Deposit Agreement
The form of depositary receipt evidencing the depositary
shares and any provision of the deposit agreement may at any time be amended by agreement between us and the preferred stock depositary.
However, any amendment that materially and adversely alters any existing right of the holders of depositary receipts will not be effective
unless the amendment has been approved by the holders of depositary receipts representing at least a majority of the depositary shares
then outstanding. Additionally, in the case of amendments relating to or affecting rights to receive dividends or distributions or voting
or redemption rights, approval is also required by the holders of depositary receipts representing not less than a specified percentage
or all of the depositary shares of such series or class then outstanding, as provided in the applicable prospectus supplement. Every holder
of an outstanding depositary receipt at the time any such amendment becomes effective will be deemed, by continuing to hold the depositary
receipt, to consent and agree to the amendment and to be bound by the deposit agreement, as amended.
We may direct the preferred stock depositary to
terminate the deposit agreement at any time by mailing notice of termination to the record holders of the depositary receipts then outstanding
at least 30 days prior to the date fixed for termination. Upon termination, the preferred stock depositary will deliver to each holder
of depositary receipts, upon surrender of those receipts, such number of whole shares of the series of preferred stock represented by
the depositary shares together with cash in lieu of any fractional shares, to the extent we have deposited cash for payment in lieu of
fractional shares with the preferred stock depositary. In addition, the deposit agreement will automatically terminate if:
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all of the outstanding shares of the preferred stock deposited with the preferred stock depositary have been withdrawn, redeemed, converted or exchanged; or |
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there has been a final distribution in respect of the deposited preferred stock in connection with our liquidation, dissolution or winding up and the distribution has been made to the holders of the related depositary shares evidenced by depositary receipts. |
Charges of Preferred Stock Depositary; Taxes and Other Governmental
Charges
We will pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary arrangements. We also will pay charges of the preferred stock depositary in
connection with the initial deposit of preferred stock and any redemption of preferred stock. Holders of depositary receipts will pay
other transfer and other taxes and governmental charges and such other charges, including a fee for the withdrawal of shares of preferred
stock upon surrender of depositary receipts, as are expressly provided in the deposit agreement to be for their accounts.
Prospective purchasers of depositary shares should
be aware that special tax, accounting and other issues may be applicable to instruments such as depositary shares.
Resignation and Removal of Depositary
The preferred stock depositary may resign at any
time by delivering to us notice of its intent to do so, and we may at any time remove the preferred stock depositary, any such resignation
or removal to take effect upon the appointment of a successor preferred stock depositary meeting the requirements specified in the deposit
agreement and its acceptance of such appointment.
Miscellaneous
The preferred stock depositary will forward all
reports and communications from us which are delivered to the preferred stock depositary and which we are required to furnish to the holders
of the deposited preferred stock.
Neither we nor the preferred stock depositary will
be liable if we are or the preferred stock depositary is prevented or delayed by law or any circumstances beyond our or its control in
performing our or its obligations under the deposit agreement. Our obligations and the obligations of the preferred stock depositary under
the deposit agreement will be limited to performance in good faith of the duties under the deposit agreement, and we and the preferred
stock depositary will not be obligated to prosecute or defend any legal proceeding in respect of any depositary shares, depositary receipts
or shares of preferred stock unless satisfactory indemnity is furnished. We and the preferred stock depositary may rely upon written advice
of counsel or accountants, or upon information provided by holders of depositary receipts or other persons believed to be competent and
on documents believed to be genuine.
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of common
stock, preferred stock, depositary shares or debt securities. We may issue warrants independently or together with any offered securities.
The warrants may be attached to or separate from those offered securities. We may issue the warrants under warrant agreements to be entered
into between us and a bank or trust company to be named in the applicable prospectus supplement, as warrant agent, all as described in
the applicable prospectus supplement. The warrant agent will act solely as our agent in connection with the warrants and will not assume
any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants. If we offer warrants, we will
file the warrant agreement relating to the offered warrants as an exhibit to, or incorporate it by reference in, the registration statement
of which this prospectus is a part.
The prospectus supplement relating to any warrants
that we may offer will contain the specific terms of the warrants. These terms may include the following:
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the title of the warrants; |
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the price or prices at which the warrants will be issued; |
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the designation, amount and terms of the securities for which the warrants are exercisable; |
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the designation and terms of the other securities, if any, with which the warrants are to be issued and the number of warrants issued with each other security; |
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the aggregate number of warrants; |
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any provisions for adjustment of the number or amount of securities receivable upon exercise of the warrants or the exercise price of the warrants; |
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the price or prices at which the securities purchasable upon exercise of the warrants may be purchased; |
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if applicable, the date on and after which the warrants and the securities purchasable upon exercise of the warrants will be separately transferable; |
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a discussion of any material U.S. federal income tax considerations applicable to the exercise of the warrants; |
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the date on which the right to exercise the warrants will commence, and the date on which the right will expire; |
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the maximum or minimum number of warrants that may be exercised at any time; |
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information with respect to book-entry procedures, if any; and |
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any other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. |
Exercise of Warrants
Each warrant will entitle the holder of warrants
to purchase for cash the amount of common stock, preferred stock, depositary shares or debt securities, at the exercise price stated or
determinable in the prospectus supplement for the warrants. Warrants may be exercised at any time up to the close of business on the expiration
date shown in the applicable prospectus supplement, unless otherwise specified in such prospectus supplement. After the close of business
on the expiration date, if applicable, unexercised warrants will become void. Warrants may be exercised as described in the applicable
prospectus supplement. When the warrant holder makes the payment and properly completes and signs the warrant certificate at the corporate
trust office of the warrant agent or any other office indicated in the prospectus supplement, we will, as soon as possible, forward the
common stock, preferred stock, depositary shares or debt securities that the warrant holder has purchased. If the warrant holder exercises
the warrant for less than all of the warrants represented by the warrant certificate, we will issue a new warrant certificate for the
remaining warrants.
DESCRIPTION OF SUBSCRIPTION RIGHTS
We may issue subscription rights to purchase shares
of our common stock, preferred stock or depositary shares. These subscription rights may be issued independently or together with any
other security offered hereby and may or may not be transferable by the stockholder receiving the subscription rights in such offering.
In connection with any offering of subscription rights, we may enter into a standby arrangement with one or more underwriters or other
purchasers pursuant to which the underwriters or other purchasers may be required to purchase any securities remaining unsubscribed for
after such offering.
The applicable prospectus supplement will describe
the specific terms of any offering of subscription rights for which this prospectus is being delivered, including the following:
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the price, if any, for the subscription rights; |
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the exercise price payable for each share of common stock or preferred stock or depositary share upon the exercise of the subscription rights; |
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the number of subscription rights issued to each stockholder; |
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the number and terms of the shares of common stock or preferred stock or depositary shares which may be purchased per each subscription right; |
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the extent to which the subscription rights are transferable; |
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any other terms of the subscription rights, including the terms, procedures and limitations relating to the exchange and exercise of the subscription rights; |
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the date on which the right to exercise the subscription rights shall commence, and the date on which the subscription rights shall expire; |
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the extent to which the subscription rights may include an over-subscription privilege with respect to unsubscribed securities; and |
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if applicable, the material terms of any standby underwriting or purchase arrangement entered into by us in connection with the offering of subscription rights. |
The description in the applicable prospectus supplement
of any subscription rights we offer will not necessarily be complete and will be qualified in its entirety by reference to the applicable
subscription rights certificate, which will be filed with the SEC if we offer subscription rights.
DESCRIPTION OF UNITS
As specified in the applicable prospectus supplement,
we may issue units consisting of one or more subscription rights, warrants, debt securities, shares of preferred stock, depositary shares,
shares of common stock or any combination of such securities issued by us or by third parties. The applicable prospectus supplement will
describe:
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the terms of the units and of the subscription rights, warrants, debt securities, preferred stock, depositary shares and common stock comprising the units, including whether and under what circumstances the securities comprising the units may be traded separately; |
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a description of the terms of any unit agreement governing the units; and |
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a description of the provisions for the payment, settlement, transfer or exchange or the units. |
PLAN OF DISTRIBUTION
We may sell the securities offered by this prospectus
from time to time in one or more transactions,
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directly to purchasers; |
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through agents; |
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to or through underwriters or dealers; or |
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through a combination of these methods. |
A distribution of the securities offered by this
prospectus may also be effected through the issuance of derivative securities, including without limitation, warrants and subscriptions.
In addition, the manner in which we may sell some
or all of the securities covered by this prospectus includes, without limitation, through:
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a block trade in which a broker-dealer will attempt to sell as agent, but may position or resell a portion of the block, as principal, in order to facilitate the transaction; |
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purchases by a broker-dealer, as principal, and resale by the broker-dealer for its account; or |
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ordinary brokerage transactions and transactions in which a broker solicits purchasers. |
In addition, we may enter into derivative or hedging
transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions.
In connection with such a transaction, the third parties may sell securities covered by and pursuant to this prospectus and an applicable
prospectus supplement or other offering materials, as the case may be. If so, the third party may use securities borrowed from us or others
to settle such sales and may use securities received from us to close out any related short positions. We may also loan or pledge securities
covered by this prospectus and an applicable prospectus supplement to third parties, who may sell the loaned securities or, in an event
of default in the case of a pledge, sell the pledged securities pursuant to this prospectus and the applicable prospectus supplement or
other offering materials, as the case may be.
A prospectus supplement with respect to each series
of securities will state the terms of the offering of the securities, including:
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the terms of the offering; |
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the name or names of any underwriters or agents and the amounts of securities underwritten or purchased by each of them, if any; |
| |
● |
the public offering price or purchase price of the securities and the net proceeds to be received by us from the sale; |
| |
● |
any delayed delivery arrangements; |
| |
● |
any initial public offering price; |
| |
● |
any underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation; |
| |
● |
any discounts or concessions allowed or reallowed or paid to dealers; and |
| |
● |
any securities exchange on which the securities may be listed. |
The offer and sale of the securities described
in this prospectus by us, the underwriters or the third parties described above may be effected from time to time in one or more transactions,
including privately negotiated transactions, either:
| |
● |
at a fixed price or prices, which may be changed; |
| |
● |
in an “at the market” offering within the meaning of Rule 415(a)(4) of the Securities Act of 1933, as amended (the “Securities Act”); |
| |
● |
at prices related to the prevailing market prices; or |
| |
● |
at negotiated prices. |
General
Underwriters, dealers, agents and remarketing firms
that participate in the distribution of the offered securities may be “underwriters” as defined in the Securities Act. Any
discounts or commissions they receive from us and any profits they receive on the resale of the offered securities may be treated as underwriting
discounts and commissions under the Securities Act. We will identify any underwriters, agents or dealers and describe their commissions,
fees or discounts in the applicable prospectus supplement, as the case may be.
Underwriters and Agents
If underwriters are used in a sale, they will acquire
the offered securities for their own account. The underwriters may resell the offered securities in one or more transactions, including
negotiated transactions. These sales will be made at a fixed public offering price or at varying prices determined at the time of the
sale. We may offer the securities to the public through an underwriting syndicate or through a single underwriter. The underwriters in
any particular offering will be named in the applicable prospectus supplement or other offering materials, as the case may be.
Unless the applicable prospectus supplement states
otherwise, the obligations of the underwriters to purchase the offered securities will be subject to certain conditions contained in an
underwriting agreement that we will enter into with the underwriters at the time of the sale to them. The underwriters will be obligated
to purchase all of the securities of the series offered if any of the securities are purchased, unless the applicable prospectus supplement
says otherwise. Any initial public offering price and any discounts or concessions allowed, reallowed or paid to dealers may be changed
from time to time.
We may designate agents to sell the offered securities.
Unless the applicable prospectus supplement states otherwise, the agents will agree to use their best efforts to solicit purchases for
the period of their appointment. We may also sell the offered securities to one or more remarketing firms, acting as principals for their
own accounts or as agents for us. These firms will remarket the offered securities upon purchasing them in accordance with a redemption
or repayment pursuant to the terms of the offered securities. A prospectus supplement or other offering materials, as the case may be,
will identify any remarketing firm and will describe the terms of its agreement, if any, with us and its compensation.
In connection with offerings made through underwriters
or agents, we may enter into agreements with such underwriters or agents pursuant to which we receive our outstanding securities in consideration
for the securities being offered to the public for cash. In connection with these arrangements, the underwriters or agents may also sell
securities covered by this prospectus to hedge their positions in these outstanding securities, including in short sale transactions.
If so, the underwriters or agents may use the securities received from us under these arrangements to close out any related open borrowings
of securities.
Dealers
We may sell the offered securities to dealers as
principals. The dealer may then resell such securities to the public either at varying prices to be determined by the dealer or at a fixed
offering price agreed to with us at the time of resale.
Direct Sales
We may choose to sell the offered securities directly.
In this case, no underwriters or agents would be involved.
Institutional Purchasers
We may authorize agents, dealers or underwriters
to solicit certain institutional investors to purchase offered securities on a delayed delivery basis pursuant to delayed delivery contracts
providing for payment and delivery on a specified future date. The applicable prospectus supplement or other offering materials, as the
case may be, will provide the details of any such arrangement, including the offering price and commissions payable on the solicitations.
We will enter into such delayed contracts only
with institutional purchasers that we approve. These institutions may include commercial and savings banks, insurance companies, pension
funds, investment companies and educational and charitable institutions.
Indemnification; Other Relationships
We may have agreements with agents, underwriters,
dealers and remarketing firms to indemnify them against certain civil liabilities, including liabilities under the Securities Act. Agents,
underwriters, dealers and remarketing firms, and their affiliates, may engage in transactions with, or perform services for, us in the
ordinary course of business. This includes commercial banking and investment banking transactions.
Market-Making, Stabilization and Other Transactions
There is currently no market for any of the offered
securities, other than our common stock and Depositary Shares (each representing a 1/1000th fractional interest in a share of our Series
A Preferred Stock) which are traded on the Nasdaq Global Market. If the offered securities are traded after their initial issuance, they
may trade at a discount from their initial offering price, depending upon prevailing interest rates, the market for similar securities
and other factors. While it is possible that an underwriter could inform us that it intends to make a market in the offered securities,
any such underwriter would not be obligated to do so, and any such market-making could be discontinued at any time without notice. Therefore,
no assurance can be given as to whether an active trading market will develop for the offered securities. We have no current plans for
listing of the debt securities, preferred stock, warrants or subscription rights on any securities exchange or quotation system. Any such
listing with respect to any particular debt securities, preferred stock, warrants or subscription rights will be described in the applicable
prospectus supplement or other offering materials, as the case may be.
Any underwriter may engage in stabilizing transactions,
syndicate covering transactions and penalty bids in accordance with Rule 104 under the Exchange Act. Stabilizing transactions involve
bids to purchase the underlying security in the open market for the purpose of pegging, fixing or maintaining the price of the securities.
Syndicate covering transactions involve purchases of the securities in the open market after the distribution has been completed in order
to cover syndicate short positions.
Penalty bids permit the underwriters to reclaim
a selling concession from a syndicate member when the securities originally sold by the syndicate member are purchased in a syndicate
covering transaction to cover syndicate short positions. Stabilizing transactions, syndicate covering transactions and penalty bids may
cause the price of the securities to be higher than it would be in the absence of these transactions. The underwriters may, if they commence
these transactions, discontinue them at any time.
LEGAL MATTERS
Unless otherwise specified in the applicable prospectus
supplement, the validity of the securities offered by this prospectus will be passed upon for us by Norton Rose Fulbright US LLP, Chicago,
Illinois. If legal matters in connection with offerings made by this prospectus are passed on by counsel for the underwriters, dealers
or agents, if any, that counsel will be named in the applicable prospectus supplement.
EXPERTS
The financial statements incorporated in this Prospectus
by reference to the Annual Report on Form 10-K for the year ended December 31, 2023 have been so incorporated in reliance on the report
of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing
and accounting.
Where
You Can Find More Information
We have filed with the Commission a registration
statement on Form S-3, including exhibits, under the Securities Act with respect to the securities offered by this prospectus. This prospectus,
which is part of the registration statement, does not contain all of the information in the registration statement. For further information
about us and our securities, you should refer to the registration statement, including exhibits, and the financial statements and notes
filed as a part thereof.
We file quarterly and annual reports, proxy statements
and other information with the Commission. Our filings with the Commission, including the registration statement, reports, proxy and information
statements, and other information are available to you on the Commission’s website at http://www.sec.gov. In addition, documents
that we file with the Commission are available on our website at www.cadizinc.com. Our website address provided in this prospectus is
not intended to function as a hyperlink and the information on our website is not, nor should it be considered, part of this prospectus
or incorporated by reference into this prospectus.
INFORMATION INCORPORATED BY REFERENCE
The Commission allows us to “incorporate
by reference” into this prospectus the information we file with them. The information we incorporate by reference into this prospectus
is an important part of this prospectus. Any statement in a document we have filed with the Commission prior to the date of this prospectus
and which is incorporated by reference into this prospectus will be considered to be modified or superseded to the extent a statement
contained in the prospectus or any other subsequently filed document that is incorporated by reference into this prospectus modifies or
supersedes that statement. The modified or superseded statement will not be considered to be a part of this prospectus, except as modified
or superseded.
We incorporate by reference into this prospectus
the information contained in the following documents, which is considered to be a part of this prospectus:
| |
● |
our Annual Report on Form 10-K for the year ended December 31, 2023, filed on March 28, 2024; |
| |
|
|
| |
● |
our Quarterly Report on Form 10-Q for the quarter ended March 31, 2024, filed on May 14, 2024; |
| |
|
|
| |
● |
our Quarterly Report on Form 10-Q for the quarter ended June 30, 2024, filed on August 13, 2024; |
| |
|
|
| |
● |
the Current Reports on Form 8-K filed with the Commission on January 5, 2024, March 4, 2024, March 5, 2024, March 6, 2024, March 14, 2024, April 2, 2024, April 19, 2024, April 19, 2024, and June 14, 2024; |
| |
|
|
| |
● |
the description of our common stock as set forth in our registration statement filed on Form 8-A under the Exchange Act on May 8, 1984, as amended by: |
| |
● |
the description of our common stock as set forth in Exhibit 4.4 to the Annual Report on Form 10-K for the year ended December 31, 2023, filed on March 28, 2024; |
| |
|
|
| |
● |
the description of our Series 1 Preferred as set forth in the Current Report on Form 8-K filed with the Commission on March 9, 2020; and |
| |
|
|
| |
● |
the registration statement filed on Form 8-A under the Exchange Act on July 2, 2021. |
We also incorporate by reference all additional
documents that we file with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act that are filed after the
date of the initial registration statement and prior to the effectiveness of the registration statement or that are filed after the effective
date of the registration statement of which this prospectus is a part and prior to the termination of the offering of securities offered
pursuant to this prospectus. We are not, however, incorporating in each case, any documents or information that we are deemed to “furnish”
and not file in accordance with the Commission rules.
You may obtain a copy of these filings, without
charge, by writing or calling us at:
Cadiz Inc.
550 South Hope Street
Suite 2850
Los Angeles, California 90071
Attention: Investor Relations
(213) 271-1600
No dealer, salesperson, or other person has been
authorized to give any information or to make any representation not contained in this prospectus, and, if given or made, such information
and representation should not be relied upon as having been authorized by us. This prospectus does not constitute an offer to sell or
a solicitation of an offer to buy any of the securities offered by this prospectus in any jurisdiction or to any person to whom it is
unlawful to make such offer or solicitation. Neither the delivery of this prospectus nor any sale made hereunder shall under any circumstances
create an implication that there has been no change in the facts set forth in this prospectus or in our affairs since the date hereof.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses
payable by the Registrant in connection with the sale of the securities being registered hereby. All amounts are estimates except the
registration fee.
| Printing Fees |
|
$ |
* |
|
| Fees of Transfer Agent and Registrar |
|
$ |
* |
|
| Trustee’s Fees and Expenses |
|
$ |
* |
|
| Accountant Fees and Expenses |
|
$ |
25,000 |
|
| SEC Filing Fee |
|
$ |
28,368.88 |
|
| FINRA Filing Fee |
|
$ |
* |
|
| Legal Fees and Expenses |
|
$ |
150,000 |
|
| Miscellaneous |
|
$ |
2,000 |
|
| Total |
|
$ |
* |
|
| * | Fees will depend upon the type
of securities offered and the number of issuances, which cannot be determined. |
ITEM 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation
Law permits our Board of Directors to indemnify any person against expenses, attorneys’ fees, judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with any threatened, pending or completed action, suit or
proceeding in which such person is made a party because such person serves or served as a director, officer, employee or agent of Cadiz
or of another entity. The language of Section 145 is sufficiently broad to permit indemnification in some situations for liabilities,
including reimbursement for expenses incurred, arising under the Securities Act of 1933, as amended. The statute provides that indemnification
pursuant to its provisions is not exclusive of other rights of indemnification to which a person may be entitled under any bylaw, agreement,
vote of stockholders or disinterested directors, or otherwise.
Our Bylaws provide for mandatory indemnification
of our directors and officers, and those serving at our request as directors, officers, employees, or agents of other entities, to the
maximum extent permitted by law. The Bylaws provide that this indemnification shall be a contract right between each of these persons
and us.
Our Certificate of Incorporation provides that
a director of the company shall not be personally liable to the company or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability:
| |
(1) |
for any breach of the director’s duty of loyalty to us or our stockholders; |
| |
|
|
| |
(2) |
for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; |
| |
|
|
| |
(3) |
under Section 174 of the Delaware General Corporation Law; or |
| |
|
|
| |
(4) |
for any transaction from which the director derived an improper personal benefit. |
Our Certificate of Incorporation provides that
if the Delaware General Corporation Law is subsequently amended to authorize the further elimination or limitation of the liability of
a director, then the liability of a director shall be eliminated or limited to the fullest extent permitted by the law as amended. We
have also purchased a liability insurance policy which insures our directors and officers against certain liabilities, including liabilities
under the Securities Act of 1933, as amended.
ITEM 16.
Exhibits.
The following exhibits are filed or incorporated
by reference as part of this Registration Statement.
| 1.1# |
Form of Underwriting Agreement. |
| 3.1 |
Cadiz Certificate of Incorporation, as amended (incorporated by reference to Exhibit 3.1 to the registrant’s Annual Report on Form 10-K for the year ended December 31, 2023, filed with the Commission on March 28, 2024). |
| 3.2 |
Cadiz Certificate of Amendment (incorporated by reference to Exhibit 3.1 to the registrant’s Current Report on Form 8-K filed with the Commission on June 14, 2024). |
| 3.3 |
Cadiz Bylaws, as amended (incorporated by reference to Exhibit 3.2 to the registrant’s Annual Report on Form 10-K for the year ended December 31, 2023, filed with the Commission on March 28, 2024). |
| 3.4 |
Certificate of Designation of Series 1 Preferred Stock of Cadiz Inc. (incorporated by reference to Exhibit 3.3 to the registrant’s Annual Report on Form 10-K for the year ended December 31, 2023, filed with the Commission on March 28, 2024). |
| 3.5 |
Certificate of Designation of 8.875% Series A Cumulative Perpetual Preferred Stock of Cadiz Inc. (incorporated by reference to Exhibit 3.4 to the registrant’s Annual Report on Form 10-K for the year ended December 31, 2023, filed with the Commission on March 28, 2024). |
| 4.1 |
Description of Securities Registered Under Section 12 of the Securities Exchange Act of 1934 (incorporated by reference to Exhibit 4.4 to the registrant’s Annual Report on Form 10-K for the year ended December 31, 2023, filed with the Commission on March 28, 2024). |
| 4.2* |
Form of Senior Indenture. |
| 4.3* |
Form of Subordinated Indenture. |
| 4.4 |
Deposit Agreement, dated effective as of July 2, 2021, by and among the Company, Continental Stock Transfer & Trust Company, as depositary, and the holders of the depositary receipts issued thereunder (incorporated by reference to Exhibit 4.1 to the registrant’s Current Report on Form 8-K filed with the Commission on July 2, 2021). |
| 4.5 |
Common Stock Purchase Warrant dated as of March 6, 2024 (incorporated by reference to Exhibit 4.1 to the registrant’s Current Report on Form 8-K filed with the Commission on March 6, 2024). |
| 5.1* |
Opinion of Norton Rose Fulbright US LLP. |
| 23.1* |
Consent of Independent Registered Public Accounting Firm. |
| 23.2* |
Consent of Norton Rose Fulbright US LLP (included in its opinion filed as Exhibit 5.1). |
| 24.1* |
Power of Attorney (included on signature page). |
| 25.1+ |
Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 for the form of Senior
Indenture. |
| 25.2+ |
Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 for the form of Subordinated
Indenture. |
| 107* |
Filing Fee Table. |
| * |
Filed herewith |
| # |
To be filed, if necessary, by amendment or as an exhibit to one or more Current Reports on Form 8-K or a Post-Effective Amendment to the Registration Statement. |
| + |
To be filed pursuant to 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, as amended (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 a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table
in the effective registration statement; |
| (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)
above do not apply if the registration statement is on Form S-3, and 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, as amended (the “Exchange Act”), that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of this 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, if the registrant is relying on Rule 430B: |
| (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 the 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 under the Securities Act to any purchaser: |
| (i) | If the registrant is subject
to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration
statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included
in the registration statement as of the date it is first used after effectiveness. 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 first use, 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 date of first use. |
| |
(6) |
That, for the purpose of determining liability
of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
The undersigned registrant undertakes that in
a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting
method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to
such purchaser: |
| (i) | Any preliminary prospectus or
prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
| (ii) | Any free writing prospectus
relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
| (iii) | The portion of any other free
writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and |
| (iv) | Any other communication that
is an offer in the offering made by the undersigned registrant to the purchaser. |
| (b) | The undersigned registrant
hereby undertakes that, for purposes of determining any liability under the Securities Act, 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. |
| (h) | 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 Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. |
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Los Angeles, State of California, on August 13, 2024.
| |
CADIZ INC. |
| |
Registrant |
| |
|
| |
By: |
/s/ Stanley E. Speer |
| |
|
Stanley E. Speer |
| |
|
Chief Financial Officer |
KNOW ALL YE BY THESE PRESENTS, that each individual
whose signature appears below constitutes and appoints Susan P. Kennedy and Stanley E. Speer, and each of them, his true and lawful attorneys-in-fact
and agents with full power of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to
sign any and all amendments (including post-effective amendments) to this Registration Statement and any subsequent registration statements
filed by the Registrant pursuant to Rule 462(b) of the Securities Act of 1933, which relates to this Registration Statement, and to file
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be
done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or their substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
| Name and Position |
|
Date |
| |
|
|
| /s/ Susan P. Kennedy |
|
|
August 13, 2024 |
| Susan P. Kennedy, Chief Executive Officer and Chairman |
|
|
| (Principal Executive Officer) |
|
|
| |
|
|
| /s/ Stanley E. Speer |
|
|
August 13, 2024 |
| Stanley E. Speer, Chief Financial Officer and Secretary |
|
|
| (Principal Financial and Accounting Officer) |
|
|
| |
|
|
| /s/ Stephen E. Courter |
|
|
August 13, 2024 |
| Stephen E. Courter, Director |
|
|
| |
|
|
| /s/ Maria Dreyfus |
|
|
August 13, 2024 |
| Maria Dreyfus, Director |
|
|
| |
|
|
| /s/ Maria Echaveste |
|
|
August 13, 2024 |
| Maria Echaveste, Director |
|
|
| |
|
|
| /s/ Winston H. Hickox |
|
|
August 13, 2024 |
| Winston H. Hickox, Director |
|
|
| |
|
|
| /s/ Barbara A. Lloyd |
|
|
August 13, 2024 |
| Barbara A. Lloyd, Director |
|
|
| |
|
|
| /s/ Kenneth T. Lombard |
|
|
August 13, 2024 |
| Kenneth T. Lombard, Director |
|
|
| |
|
|
| /s/ Richard Polanco |
|
|
August 13, 2024 |
| Richard Polanco, Director |
|
|
| |
|
|
| /s/ Carolyn Webb de Macías |
|
|
August 13, 2024 |
| Carolyn Webb de Macías, Director |
|
|
Exhibit 4.2
Cadiz Inc.,
Issuer
AND
[Name of Trustee],
Trustee
INDENTURE
Dated as of [ ]
Senior Debt Securities
TABLE OF
CONTENTS
| |
|
Page |
| |
|
|
| Article 1. DEFINITIONS |
1 |
| |
|
|
| Section 1.01 |
Definitions of Terms |
1 |
| |
|
|
| Article 2. ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
5 |
| |
|
|
| Section 2.01 |
Designation and Terms of Securities |
5 |
| Section 2.02 |
Form of Securities and Trustee’s Certificate |
8 |
| Section 2.03 |
Denominations: Provisions for Payment |
8 |
| Section 2.04 |
Execution and Authentications |
10 |
| Section 2.05 |
Registration of Transfer and Exchange |
10 |
| Section 2.06 |
Temporary Securities |
12 |
| Section 2.07 |
Mutilated, Destroyed, Lost or Stolen Securities |
12 |
| Section 2.08 |
Cancellation |
13 |
| Section 2.09 |
Benefits of Indenture |
13 |
| Section 2.10 |
Authenticating Agent |
14 |
| Section 2.11 |
Global Securities |
14 |
| Section 2.12 |
CUSIP Numbers |
15 |
| |
|
|
| Article 3. REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS |
15 |
| |
|
|
| Section 3.01 |
Redemption |
15 |
| Section 3.02 |
Notice of Redemption |
16 |
| Section 3.03 |
Payment Upon Redemption |
17 |
| Section 3.04 |
Sinking Fund |
17 |
| Section 3.05 |
Satisfaction of Sinking Fund Payments with Securities |
17 |
| Section 3.06 |
Redemption of Securities for Sinking Fund |
18 |
| |
|
|
| Article 4. COVENANTS |
18 |
| |
|
|
| Section 4.01 |
Payment of Principal, Premium and Interest |
18 |
| Section 4.02 |
Maintenance of Office or Agency |
19 |
| Section 4.03 |
Paying Agents |
19 |
| Section 4.04 |
Appointment to Fill Vacancy in Office of Trustee |
20 |
| |
|
|
| Article 5. SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
20 |
| |
|
|
| Section 5.01 |
Company to Furnish Trustee Names and Addresses of Securityholders |
20 |
| Section 5.02 |
Preservation of Information; Communications with Securityholders |
20 |
| Section 5.03 |
Reports by the Company |
21 |
| Section 5.04 |
Reports by the Trustee |
21 |
TABLE OF CONTENTS
(CONTINUED)
| Article 6. REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
22 |
| |
|
|
| Section 6.01 |
Events of Default |
22 |
| Section 6.02 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
24 |
| Section 6.03 |
Application of Moneys Collected |
25 |
| Section 6.04 |
Limitation on Suits |
25 |
| Section 6.05 |
Rights and Remedies Cumulative; Delay or Omission Not Waiver |
26 |
| Section 6.06 |
Control by Securityholders |
27 |
| Section 6.07 |
Undertaking to Pay Costs |
27 |
| |
|
|
| Article 7. CONCERNING THE TRUSTEE |
27 |
| |
|
|
| Section 7.01 |
Certain Duties and Responsibilities of Trustee |
27 |
| Section 7.02 |
Certain Rights of Trustee |
29 |
| Section 7.03 |
Trustee Not Responsible for Recitals or Issuance or Securities |
31 |
| Section 7.04 |
May Hold Securities |
31 |
| Section 7.05 |
Moneys Held in Trust |
31 |
| Section 7.06 |
Compensation and Reimbursement |
31 |
| Section 7.07 |
Reliance on Officer’s Certificate |
32 |
| Section 7.08 |
Disqualification; Conflicting Interests |
32 |
| Section 7.09 |
Corporate Trustee Required; Eligibility |
32 |
| Section 7.10 |
Resignation and Removal; Appointment of Successor |
33 |
| Section 7.11 |
Acceptance of Appointment by Successor |
34 |
| Section 7.12 |
Merger, Conversion, Consolidation or Succession to Business |
35 |
| Section 7.13 |
Preferential Collection of Claims Against the Company |
35 |
| Section 7.14 |
Notice of Default |
36 |
| |
|
|
| Article 8. CONCERNING THE SECURITYHOLDERS |
36 |
| |
|
|
| Section 8.01 |
Evidence of Action by Securityholders |
36 |
| Section 8.02 |
Proof of Execution by Securityholders |
37 |
| Section 8.03 |
Who May be Deemed Owners |
37 |
| Section 8.04 |
Certain Securities Owned by Company Disregarded |
37 |
| Section 8.05 |
Actions Binding on Future Securityholders |
38 |
| |
|
|
| Article 9. SUPPLEMENTAL INDENTURES |
38 |
| |
|
|
| Section 9.01 |
Supplemental Indentures Without the Consent of Securityholders |
38 |
| Section 9.02 |
Supplemental Indentures With Consent of Securityholders |
39 |
| Section 9.03 |
Effect of Supplemental Indentures |
40 |
| Section 9.04 |
Securities Affected by Supplemental Indentures |
40 |
| Section 9.05 |
Execution of Supplemental Indentures |
40 |
| |
|
|
| Article 10. SUCCESSOR ENTITY |
41 |
| |
|
|
| Section 10.01 |
Company May Consolidate, Etc |
41 |
| Section 10.02 |
Successor Entity Substituted |
41 |
TABLE OF CONTENTS
(CONTINUED)
| Article 11. SATISFACTION AND DISCHARGE |
42 |
| |
|
|
| Section 11.01 |
Satisfaction and Discharge of Indenture |
42 |
| Section 11.02 |
Discharge of Obligations |
42 |
| Section 11.03 |
Deposited Moneys to be Held in Trust |
43 |
| Section 11.04 |
Payment of Moneys Held by Paying Agents |
43 |
| Section 11.05 |
Repayment to Company |
43 |
| |
|
|
| Article 12. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
43 |
| |
|
|
| Section 12.01 |
No Recourse |
43 |
| |
|
|
| Article 13. MISCELLANEOUS PROVISIONS |
44 |
| |
|
|
| Section 13.01 |
Effect on Successors and Assigns |
44 |
| Section 13.02 |
Actions by Successor |
44 |
| Section 13.03 |
Surrender of Company Powers |
44 |
| Section 13.04 |
Notices |
44 |
| Section 13.05 |
Governing Law; Jurisdiction; Jury Trial Waiver |
44 |
| Section 13.06 |
Treatment of Securities as Debt |
45 |
| Section 13.07 |
Certificates and Opinions as to Conditions Precedent |
45 |
| Section 13.08 |
Payments on Business Days |
46 |
| Section 13.09 |
Conflict with Trust Indenture Act |
46 |
| Section 13.10 |
Counterparts |
46 |
| Section 13.11 |
Severability |
46 |
| Section 13.12 |
Compliance Certificates |
46 |
| Section 13.13 |
U.S.A. Patriot Act |
47 |
| Section 13.14 |
Force Majeure |
47 |
| Section 13.15 |
Table of Contents; Headings |
47 |
| Section 13.16 |
E-Signatures |
47 |
INDENTURE
INDENTURE, dated as of [ ],
among CADIZ INC., a Delaware corporation (the “Company”), and [NAME OF TRUSTEE], as trustee (the “Trustee”):
WHEREAS, for its lawful corporate purposes, the
Company has duly authorized the execution and delivery of this Indenture (as defined below) to provide for the issuance of
debt securities (hereinafter referred to as the “Securities”), in an unlimited aggregate principal amount to be
issued from time to time in one or more series as in this Indenture provided, as registered Securities without coupons, to be
authenticated by the certificate of the Trustee;
WHEREAS, to provide the terms and conditions upon which
the Securities are to be authenticated, issued and delivered, the Company has duly authorized the execution of this Indenture;
and
WHEREAS, all things necessary to make this Indenture
a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and
the purchase of the Securities by the holders thereof, it is mutually covenanted and agreed as follows for the equal and ratable
benefit of the holders of Securities:
Article
1.
DEFINITIONS
Section 1.01 Definitions of Terms.
The terms defined in this Section (except as in this Indenture
or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires) for all purposes of
this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section and shall
include the plural as well as the singular. All other terms used in this Indenture that are defined in the Trust Indenture Act
(as defined below), or that are by reference in the Trust Indenture Act defined in the Securities Act (as defined below) (except
as herein or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires), shall have
the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of the execution
of this instrument.
“Authenticating Agent” means the
Trustee or an authenticating agent with respect to all or any of the series of Securities appointed by the Trustee pursuant to
Section 2.10.
“Bankruptcy Law” means Title 11,
U.S. Code, or any similar federal or state law for the relief of debtors.
“Board of Directors” means the Board
of Directors (or the functional equivalent thereof) of the Company or any duly authorized committee of the Board of Directors.
“Board Resolution” means a copy of
a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors
(or duly authorized committee thereof) and to be in full force and effect on the date of such certification.
“Business Day” means, with respect
to any series of Securities, any day other than a day on which federal or state banking institutions in the Borough of Manhattan,
the City of New York, New York or in the city of the Corporate Trust Office of the Trustee, are authorized or obligated by law,
executive order or regulation to close.
“Commission” means the Securities
and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution
of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.
“Company” means CADIZ INC.,
a corporation duly organized and existing under the laws of the State of Delaware, and, subject to the provisions of Article 10,
shall also include its successors and assigns.
“Corporate Trust Office” means the
office of the Trustee at which, at any particular time, its corporate trust business relating to this Indenture shall be administered,
which office at the date hereof is located at.
“Custodian” means any receiver, trustee,
assignee, liquidator or similar official under any Bankruptcy Law.
“Defaulted Interest” has the meaning
set forth in Section 2.03.
“Depositary” means, with respect
to Securities of any series for which the Company shall determine that such Securities will be issued as a Global Security, The
Depository Trust Company, another clearing agency, or any successor registered as a clearing agency under the Exchange Act, or
other applicable statute or regulation, which, in each case, shall be designated by the Company pursuant to either Section 2.01
or Section 2.11.
“Event of Default” means, with respect
to Securities of a particular series, any event specified in Section 6.01, continued for the period of time, if any, therein designated.
“Exchange Act” means the United States
Securities and Exchange Act of 1934, as amended, and the rules and regulations promulgated by the Commission thereunder.
The term “given”, “mailed”,
“notify” or “sent” with respect to any notice to be given to a Securityholder
pursuant to this Indenture, shall mean notice (a) given to the Depositary (or its designee) pursuant to the standing instructions
from the Depositary or its designee, including by electronic mail in accordance with accepted practices or procedures at the Depositary
(in the case of a Global Security) or (b) mailed to such Securityholder by first class mail, postage prepaid, at its address as
it appears on the Security Register (in the case of a definitive Security). Notice so “given” shall be deemed to include
any notice to be “mailed” or “delivered,” as applicable, under this Indenture.
“Global Security” means a Security
issued to evidence all or a part of any series of Securities which is executed by the Company and authenticated and delivered
by the Trustee to the Depositary or pursuant to the Depositary’s instruction, all in accordance with the Indenture, which
shall be registered in the name of the Depositary or its nominee.
“Governmental Obligations” means
securities that are (a) direct obligations of the United States of America for the payment of which its full faith and credit
is pledged or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United
States of America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States
of America that, in either case, are not callable or redeemable at the option of the issuer thereof at any time prior to the stated
maturity of the Securities, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect
to any such Governmental Obligation or a specific payment of principal of or interest on any such Governmental Obligation held
by such custodian for the account of the holder of such depositary receipt; provided, however, that (except as required
by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt
from any amount received by the custodian in respect of the Governmental Obligation or the specific payment of principal of or
interest on the Governmental Obligation evidenced by such depositary receipt.
“herein”, “hereof”
and “hereunder”, and other words of similar import, refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
“Indenture” means this instrument
as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto
entered into in accordance with the terms hereof and shall include the terms of particular series of Securities established as
contemplated by Section 2.01.
“Interest Payment Date” means, when
used with respect to any installment of interest on a Security of a particular series, the date specified in such Security or
in a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date on which an installment
of interest with respect to Securities of that series is due and payable.
“Officer” means, with respect to
the Company, the chairman of the Board of Directors, a chief executive officer, a president, a chief financial officer, a chief
operating officer, any executive vice president, any senior vice president, any vice president, the treasurer or any assistant
treasurer, the controller or any assistant controller or the secretary or any assistant secretary.
“Officer’s Certificate” means
a certificate signed by any Officer. Each such certificate shall include the statements provided for in Section 13.07, if and
to the extent required by the provisions thereof.
“Opinion of Counsel” means an opinion
in writing subject to customary and reasonable exceptions of legal counsel, who may be an employee of or counsel for the Company
or other counsel who is reasonably satisfactory to the Trustee, that is delivered to the Trustee in accordance with the terms
hereof. Each such opinion shall include the statements provided for in Section 13.07, if and to the extent required by the provisions
thereof.
“Outstanding” means, when
used with reference to Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time,
all Securities of that series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities
theretofore canceled by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that
have previously been canceled; (b) Securities or portions thereof for the payment or redemption of which moneys or Governmental
Obligations in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the
Company) or shall have been set aside and segregated in trust by the Company (if the Company shall act as its own paying agent);
provided, however, that if such Securities or portions of such Securities are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as provided in Article 3, or provision satisfactory to the Trustee shall
have been made for giving such notice; and (c) Securities in lieu of or in substitution for which other Securities shall have
been authenticated and delivered pursuant to the terms of Section 2.07.
“Person” means any individual, corporation,
partnership, joint venture, joint-stock company, limited liability company, association, trust, unincorporated organization, any
other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Predecessor Security” of any particular
Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security;
and, for the purposes of this definition, any Security authenticated and delivered under Section 2.07 in lieu of a lost, destroyed
or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“Responsible Officer” when used with
respect to the Trustee means any officer within the Corporate Trust Office of the Trustee (or any successor group of the Trustee)
or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter relating to this Indenture, any other officer to
whom such matter is referred because of his or her knowledge of and familiarity with the particular subject and, in each case,
who shall have direct responsibility for the administration of this Indenture.
“Securities” has the meaning stated
in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
“Securities Act” means the Securities
Act of 1933, as amended.
“Securityholder”, “holder
of Securities”, “registered holder”, or other similar term, means the Person or Persons
in whose name or names a particular Security is registered on the Security Register kept for that purpose in accordance with the
terms of this Indenture.
“Security Register” and “Security
Registrar” shall have the meanings as set forth in Section 2.05.
“Subsidiary” means, with respect
to any Person, any corporation, association, partnership or other business entity of which more than 50% of the total voting power
of shares of capital stock or other interests (including partnership interests) entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers, general partners or trustees thereof is at the time owned or
controlled, directly or indirectly, by (a) such Person; (b) such Person and one or more Subsidiaries of such Person; or (c) one
or more Subsidiaries of such Person.
“Trust Indenture Act” means the Trust
Indenture Act of 1939, as amended.
“Trustee” means [NAME OF TRUSTEE],
and, subject to the provisions of Article 7, shall also include its successors and assigns, and, if at any time there is more
than one Person acting in such capacity hereunder, “Trustee” shall mean each such Person. The term “Trustee”
as used with respect to a particular series of the Securities shall mean the trustee with respect to that series.
“U.S.A. Patriot Act” means the Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56,
as amended and signed into law October 26, 2001.
Article
2.
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES
Section 2.01 Designation and Terms
of Securities.
(a) The aggregate principal amount of Securities
that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series up
to the aggregate principal amount of Securities of that series from time to time authorized by or pursuant to a Board Resolution
or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities of any series, there shall
be established in or pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one or
more indentures supplemental hereto:
(1) the title of the Securities of the series
(which shall distinguish the Securities of that series from all other Securities);
(2) any limit upon the aggregate principal
amount of the Securities of that series that may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of that series);
(3) the maturity date or dates on which the
principal of the Securities of the series is payable;
(4) the form of the Securities of the series
including the form of the certificate of authentication for such series;
(5) the applicability of any guarantees;
(6) whether or not the Securities will be
secured or unsecured, and the terms of any secured debt;
(7) whether the Securities rank as senior
debt, senior subordinated debt, subordinated debt or any combination thereof, and the terms of any subordination;
(8) if the price (expressed as a percentage
of the aggregate principal amount thereof) at which such Securities will be issued is a price other than the principal amount thereof,
the portion of the principal amount thereof payable upon declaration of acceleration of the maturity thereof, or if applicable,
the portion of the principal amount of such Securities that is convertible into another security or the method by which any such
portion shall be determined;
(9) the interest rate or rates, which may
be fixed or variable, or the method for determining the rate or rates and the date interest will begin to accrue, the dates interest
will be payable and the regular record dates for interest payment dates or the method for determining such dates;
(10) the Company’s right, if any, to
defer the payment of interest and the maximum length of any such deferral period;
(11) if applicable, the date or dates after
which, or the period or periods during which, and the price or prices at which, the Company may at its option, redeem the series
of Securities pursuant to any optional or provisional redemption provisions and the terms of those redemption provisions;
(12) the date or dates, if any, on which,
and the price or prices at which the Company is obligated, pursuant to any mandatory sinking fund or analogous fund provisions
or otherwise, to redeem, or at the Securityholder’s option to purchase, the series of Securities and the currency or currency
unit in which the Securities are payable;
(13) the denominations in which the Securities
of the series shall be issuable, if other than minimum denominations of one thousand U.S. dollars ($1,000) or any integral multiple
in excess thereof;
(14) any and all terms, if applicable, relating
to any auction or remarketing of the Securities of that series and any security for the obligations of the Company with respect
to such Securities and any other terms which may be advisable in connection with the marketing of Securities of that series;
(15) whether the Securities of the series
shall be issued in whole or in part in the form of a Global Security or Securities; the terms and conditions, if any, upon which
such Global Security or Securities may be exchanged in whole or in part for other individual Securities; and the Depositary for
such Global Security or Securities;
(16) if applicable, the provisions relating
to conversion or exchange of any Securities of the series and the terms and conditions upon which such Securities will be so convertible
or exchangeable, including the conversion or exchange price, as applicable, or how it will be calculated and may be adjusted, any
mandatory or optional (at the Company’s option or the holders’ option) conversion or exchange features, the applicable
conversion or exchange period and the manner of settlement for any conversion or exchange, which may, without limitation, include
the payment of cash as well as the delivery of securities;
(17) if other than the full principal amount
thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration
of the maturity thereof pursuant to Section 6.01;
(18) additions to or changes in the covenants
applicable to the series of Securities being issued, including, among others, the consolidation, merger or sale covenant;
(19) additions to or changes in the Events
of Default with respect to the Securities and any change in the right of the Trustee or the Securityholders to declare the principal,
premium, if any, and interest, if any, with respect to such Securities to be due and payable;
(20) additions to or changes in or deletions
of the provisions relating to covenant defeasance and legal defeasance;
(21) additions to or changes in the provisions
relating to satisfaction and discharge of this Indenture;
(22) additions to or changes in the provisions
relating to the modification of this Indenture both with and without the consent of Securityholders of Securities issued under
this Indenture;
(23) the currency of payment of Securities
if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars;
(24) whether interest will be payable in cash
or additional Securities at the Company’s or the Securityholders’ option and the terms and conditions upon which the
election may be made;
(25) the terms and conditions, if any, upon
which the Company shall pay amounts in addition to the stated interest, premium, if any and principal amounts of the Securities
of the series to any Securityholder that is not a “United States person” for federal tax purposes;
(26) any restrictions on transfer, sale or
assignment of the Securities of the series; and
(27) any other specific
terms, preferences, rights or limitations of, or restrictions on, the Securities, any other additions or changes in the provisions
of this Indenture, and any terms that may be required by us or advisable under applicable laws or regulations.
All Securities of any one series shall be
substantially identical except as may otherwise be provided in or pursuant to any such Board Resolution or in any indentures supplemental
hereto. If any of the terms of the series are established by action taken pursuant to a Board Resolution of the Company, a copy
of an appropriate record of such action shall be certified by the secretary or an assistant secretary of the Company and delivered
to the Trustee at or prior to the delivery of the Officer’s Certificate of the Company setting forth the terms of the series.
Securities of any particular series may
be issued at various times, with different dates on which the principal or any installment of principal is payable, with different
rates of interest, if any, or different methods by which rates of interest may be determined, with different dates on which such
interest may be payable and with different redemption dates.
Section 2.02 Form of Securities and
Trustee’s Certificate.
The Securities of any series and the Trustee’s
certificate of authentication to be borne by such Securities shall be substantially of the tenor and purport as set forth in one
or more indentures supplemental hereto or as provided in a Board Resolution, and set forth in an Officer’s Certificate, and
they may have such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed
or engraved thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as
may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any
securities exchange on which Securities of that series may be listed, or to conform to usage.
Section 2.03 Denominations: Provisions
for Payment.
Unless otherwise set forth in a Board Resolution
or one or more indentures supplemental hereto establishing the terms of any series of Securities pursuant to Section 2.01 hereof,
the Securities shall be issuable as registered Securities and in minimum denominations of one thousand U.S. dollars ($1,000) or
any integral multiple in excess thereof. The Securities of a particular series shall bear interest payable on the dates and at
the rate specified with respect to that series. Subject to Section 2.01(a)(23), the principal of and the interest on the Securities
of any series, as well as any premium thereon in case of redemption or repurchase thereof prior to maturity, and any cash amount
due upon conversion or exchange thereof, shall be payable in the coin or currency of the United States of America that at the time
is legal tender for public and private debt, at the office or agency of the Company maintained for that purpose. Each Security
shall be dated the date of its authentication. Interest on the Securities shall be computed on the basis of a 360-day year composed
of twelve 30-day months.
The interest installment on any Security
that is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities of that series shall
be paid to the Person in whose name said Security (or one or more Predecessor Securities) is registered at the close of business
on the regular record date for such interest installment. In the event that any Security of a particular series or portion thereof
is called for redemption and the redemption date is subsequent to a regular record date with respect to any Interest Payment Date
and prior to such Interest Payment Date, interest on such Security will be paid upon presentation and surrender of such Security
as provided in Section 3.03.
Any interest on any Security that is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date for Securities of the same series (herein called
“Defaulted Interest”) shall forthwith cease to be payable to the registered holder on the relevant regular record date
by virtue of having been such holder; and such Defaulted Interest shall be paid by the Company, at its election, as provided in
clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted
Interest on Securities to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered
in the Security Register at the close of business on a special record date for the payment of such Defaulted Interest, which shall
be fixed in the following manner: the Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each such Security and the date of the proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the
Company shall fix a special record date for the payment of such Defaulted Interest which shall not be more than 15 nor less than
10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Company shall promptly notify the Trustee of such special record date and, at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the special record date therefor to be sent, to each
Securityholder not less than 10 days prior to such special record date. Notice of the proposed payment of such Defaulted Interest
and the special record date therefor having been sent as aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names such Securities (or their respective Predecessor Securities) are registered in the Security Register on such special record
date.
(2) The Company may make payment of any Defaulted
Interest on any Securities in any other lawful manner not inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company
to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution
or one or more indentures supplemental hereto establishing the terms of any series of Securities pursuant to Section 2.01 hereof,
the term “regular record date” as used in this Section with respect to a series of Securities and any Interest Payment
Date for such series shall mean either the fifteenth day of the month immediately preceding the month in which an Interest Payment
Date established for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is the first day
of a month, or the first day of the month in which an Interest Payment Date established for such series pursuant to Section 2.01
hereof shall occur, if such Interest Payment Date is the fifteenth day of a month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this
Section, each Security of a series delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Security
of such series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security.
Section 2.04 Execution and Authentications.
The Securities shall be signed on behalf
of the Company by one of its Officers. Signatures may be in the form of a manual, facsimile or other electronic signature.
The Company may use the facsimile signature of any Person who
shall have been an Officer (at the time of execution), notwithstanding the fact that at the time the Securities shall be authenticated
and delivered or disposed of such Person shall have ceased to be such an officer of the Company. The Securities may contain such
notations, legends or endorsements required by law, stock exchange rule or usage. Each Security shall be dated the date of its
authentication by the Trustee.
A Security shall not be valid until authenticated
manually by an authorized signatory of the Trustee, or by an Authenticating Agent. Such signature shall be conclusive evidence
that the Security so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits
of this Indenture. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver
Securities of any series executed by the Company to the Trustee for authentication, together with a written order of the Company
for the authentication and delivery of such Securities, signed by an Officer, and the Trustee in accordance with such written order
shall authenticate and deliver such Securities.
Upon the Company’s delivery of any
such authentication order to the Trustee at any time after the initial issuance of Securities under this Indenture, the Trustee
shall be provided with, and (subject to Sections 315(a) through 315(d) of the Trust Indenture Act) shall be fully protected in
relying upon, (1) an Opinion of Counsel or reliance letter and (2) an Officer’s Certificate stating that all conditions precedent
to the execution, authentication and delivery of such Securities are in conformity with the provisions of this Indenture.
The Trustee shall not be required to authenticate
such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee.
Section 2.05 Registration of Transfer
and Exchange.
(a) Securities of any series may be exchanged
upon presentation thereof at the office or agency of the Company designated for such purpose, for other Securities of such series
of authorized denominations, and for a like aggregate principal amount, upon payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, all as provided in this Section. In respect of any Securities so surrendered for exchange,
the Company shall execute, the Trustee shall authenticate and such office or agency shall deliver in exchange therefor the Security
or Securities of the same series that the Securityholder making the exchange shall be entitled to receive, bearing numbers not
contemporaneously outstanding.
(b) The Company shall keep, or cause to
be kept, at its office or agency designated for such purpose a register or registers (herein referred to as the “Security
Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall register the Securities
and the transfers of Securities as in this Article provided and which at all reasonable times shall be open for inspection by the
Trustee. The registrar for the purpose of registering Securities and transfer of Securities as herein provided shall be appointed
as authorized by Board Resolution or Supplemental Indenture (the “Security Registrar”).
Upon surrender for transfer of any Security at the office or
agency of the Company designated for such purpose, the Company shall execute, the Trustee shall authenticate and such office or
agency shall deliver in the name of the transferee or transferees a new Security or Securities of the same series as the Security
presented for a like aggregate principal amount. The Company initially appoints the Trustee as initial Security Registrar for each
series of Securities.
All Securities presented or surrendered
for exchange or registration of transfer, as provided in this Section, shall be accompanied (if so required by the Company or the
Security Registrar) by a written instrument or instruments of transfer, in form satisfactory to the Company or the Security Registrar,
duly executed by the registered holder or by such holder’s duly authorized attorney in writing.
(c) Except as provided pursuant to Section
2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one or more indentures
supplemental to this Indenture, no service charge shall be made for any exchange or registration of transfer of Securities, or
issue of new Securities in case of partial redemption of any series or repurchase, conversion or exchange of less than the entire
principal amount of a Security, but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge in relation thereto, other than exchanges pursuant to Section 2.06, Section 3.03(b) and Section 9.04 not involving any transfer.
(d) The Company and the Security Registrar
shall not be required (i) to issue, exchange or register the transfer of any Securities during a period beginning at the opening
of business 15 days before the day of the sending of a notice of redemption of less than all the Outstanding Securities of the
same series and ending at the close of business on the day of such sending, nor (ii) to register the transfer of or exchange any
Securities of any series or portions thereof called for redemption or surrendered for repurchase, but not validly withdrawn, other
than the unredeemed portion of any such Securities being redeemed in part or not surrendered for repurchase, as the case may be.
The provisions of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.
The Trustee shall have no obligation or
duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under
applicable law with respect to any transfer of any interest in any Security (including any transfers between or among Depositary
participants or beneficial owners of interests in any Global Security) other than to require delivery of such certificates and
other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this
Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
Neither the Trustee nor any Agent shall
have any responsibility or liability for any actions taken or not taken by the Depositary. The Trustee shall have no responsibility
or obligation to any Securityholder that is a member of (or a participant in) the Depositary or any other Person with respect to
the accuracy of the records of the Depositary (or its nominee) or of any participant or member thereof, with respect to any ownership
interest in the Securities or with respect to the delivery of any notice (including any notice of redemption) or the payment of
any amount or delivery of any Securities (or other security or property) under or with respect to the Securities. The Trustee may
rely (and shall be fully protected in relying) upon information furnished by the Depositary with respect to its members, participants
and any beneficial owners in the Securities.
Section 2.06 Temporary Securities.
Pending the preparation of definitive Securities
of any series, the Company may execute, and the Trustee shall authenticate and deliver, temporary Securities (printed, lithographed
or typewritten) of any authorized denomination. Such temporary Securities shall be substantially in the form of the definitive
Securities in lieu of which they are issued, but with such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Company. Every temporary Security of any series shall be executed by the Company and
be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive
Securities of such series. Without unnecessary delay the Company will execute and will furnish definitive Securities of such series
and thereupon any or all temporary Securities of such series may be surrendered in exchange therefor (without charge to the Securityholders),
at the office or agency of the Company designated for the purpose, and the Trustee shall authenticate and such office or agency
shall deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of such series,
unless the Company advises the Trustee to the effect that definitive Securities need not be executed and furnished until further
notice from the Company. Until so exchanged, the temporary Securities of such series shall be entitled to the same benefits under
this Indenture as definitive Securities of such series authenticated and delivered hereunder.
Section 2.07 Mutilated, Destroyed,
Lost or Stolen Securities.
In case any temporary or definitive Security
shall become mutilated or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence) shall execute, and
upon the Company’s written request the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the
same series, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security, or in
lieu of and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security
shall furnish to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company and the Trustee evidence to their
satisfaction of the destruction, loss or theft of the applicant’s Security and of the ownership thereof. The Trustee may
authenticate any such substituted Security and deliver the same upon the written request or authorization of any officer of the
Company. Upon the issuance of any substituted Security, the Company may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith.
In case any Security that has matured or
is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Security,
pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Security) if the applicant
for such payment shall furnish to the Company and the Trustee such security or indemnity as they may require to save them harmless,
and, in case of destruction, loss or theft, evidence to the satisfaction of the Company and the Trustee of the destruction, loss
or theft of such Security and of the ownership thereof.
Every replacement Security issued pursuant
to the provisions of this Section shall constitute an additional contractual obligation of the Company whether or not the mutilated,
destroyed, lost or stolen Security shall be found at any time, or be enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Securities of the same series duly issued hereunder. All Securities
shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities, and shall preclude (to the extent lawful) any and all other rights
or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or
payment of negotiable instruments or other securities without their surrender.
Section 2.08 Cancellation.
All Securities surrendered for the purpose
of payment, redemption, repurchase, exchange, registration of transfer or conversion shall, if surrendered to the Company or any
paying agent (or any other applicable agent), be delivered to the Trustee for cancellation, or, if surrendered to the Trustee,
shall be cancelled by it, and no Securities shall be issued in lieu thereof except as expressly required or permitted by any of
the provisions of this Indenture. On request of the Company, the Trustee shall deliver to the Company certification of the cancellation.
The Trustee may dispose of cancelled Securities in accordance with its standard procedures and the record retention requirements
of the Securities Act. If the Company shall otherwise acquire any of the Securities, however, such acquisition shall not operate
as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered to the
Trustee for cancellation.
Section 2.09 Benefits of Indenture.
Nothing in this Indenture or in the Securities,
express or implied, shall give or be construed to give to any Person, other than the parties hereto and the holders of the Securities
any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant, condition or provision
herein contained; all such covenants, conditions and provisions being for the sole benefit of the parties hereto and of the holders
of the Securities.
Section 2.10 Authenticating Agent.
So long as any of the Securities of any
series remain Outstanding there may be an Authenticating Agent for any or all such series of Securities which the Trustee shall
have the right to appoint. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon exchange, transfer or partial redemption, repurchase or conversion thereof, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. All references in this Indenture to the authentication of Securities by the Trustee shall be deemed to include
authentication by an Authenticating Agent for such series. Each Authenticating Agent shall be acceptable to the Company and shall
be a corporation that has a combined capital and surplus, as most recently reported or determined by it, sufficient under the laws
of any jurisdiction under which it is organized or in which it is doing business to conduct a trust business, and that is otherwise
authorized under such laws to conduct such business and is subject to supervision or examination by federal or state authorities.
If at any time any Authenticating Agent shall cease to be eligible in accordance with these provisions, it shall resign immediately.
Any Authenticating Agent may at any time
resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time (and upon request
by the Company shall) terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating
Agent and to the Company. Upon resignation, termination or cessation of eligibility of any Authenticating Agent, the Trustee may
appoint an eligible successor Authenticating Agent acceptable to the Company. Any successor Authenticating Agent, upon acceptance
of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder as if originally
named as an Authenticating Agent pursuant hereto.
Section 2.11 Global Securities.
(a) If the Company shall establish pursuant
to Section 2.01 that the Securities of a particular series are to be issued as a Global Security, then the Company shall execute
and the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security that (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of, all of the Outstanding Securities of such series,
(ii) shall be registered in the name of the Depositary or its nominee, (iii) shall be delivered by the Trustee to the Depositary
or pursuant to the Depositary’s instruction (or if the Depositary names the Trustee as its custodian, retained by the Trustee),
and (iv) shall bear a legend substantially to the following effect: “Except as otherwise provided in Section 2.11 of this
Indenture, this Security may be transferred, in whole but not in part, only to another nominee of the Depositary or to a successor
Depositary or to a nominee of such successor Depositary.”
(b) Notwithstanding the provisions of Section
2.05, the Global Security of a series may be transferred, in whole but not in part and in the manner provided in Section 2.05,
only to another nominee of the Depositary for such series, or to a successor Depositary for such series selected or approved by
the Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a
series of the Securities notifies the Company that it is unwilling or unable to continue as Depositary for such series or if at
any time the Depositary for such series shall no longer be registered or in good standing under the Exchange Act, or other applicable
statute or regulation, and a successor Depositary for such series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, as the case may be, or if an Event of Default has occurred and is continuing
and the Company has received a request from the Depositary or from the Trustee, this Section 2.11 shall no longer be applicable
to the Securities of such series and the Company will execute, and subject to Section 2.04, the Trustee will authenticate and deliver
the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security of such series in exchange for such Global Security. In addition, the
Company may at any time determine that the Securities of any series shall no longer be represented by a Global Security and that
the provisions of this Section 2.11 shall no longer apply to the Securities of such series. In such event the Company will
execute and, subject to Section 2.04, the Trustee, upon receipt of an Officer’s Certificate evidencing such determination
by the Company, will authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal amount of the Global Security of such series in exchange
for such Global Security. Upon the exchange of the Global Security for such Securities in definitive registered form without coupons,
in authorized denominations, the Global Security shall be canceled by the Trustee. Such Securities in definitive registered form
issued in exchange for the Global Security pursuant to this Section 2.11(c) shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct
the Trustee. The Trustee shall deliver such Securities to the Depositary for delivery to the Persons in whose names such Securities
are so registered.
Section 2.12 CUSIP Numbers.
The Company in issuing the Securities may
use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices
of redemption as a convenience to Securityholders; provided that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other elements of identification printed on the Securities, and any such redemption shall not
be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee of any change in the “CUSIP”
numbers.
Article
3.
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
Section 3.01 Redemption.
The Company may redeem the Securities of
any series issued hereunder on and after the dates and in accordance with the terms established for such series pursuant to Section
2.01 hereof.
Section 3.02 Notice of Redemption.
(a) In case the Company shall desire to
exercise such right to redeem all or, as the case may be, a portion of the Securities of any series in accordance with any right
the Company reserved for itself to do so pursuant to Section 2.01 hereof, the Company shall, or shall cause the Trustee to, give
notice of such redemption to holders of the Securities of such series to be redeemed by mailing, first class postage prepaid (or
with regard to any Global Security held in book entry form, by electronic mail in accordance with the applicable procedures of
the Depositary), a notice of such redemption not less than 30 days and not more than 90 days before the date fixed for redemption
of that series to such Securityholders, unless a shorter period is specified in the Securities to be redeemed. Any notice that
is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the registered holder
receives the notice. In any case, failure duly to give such notice to the holder of any Security of any series designated for redemption
in whole or in part, or any defect in the notice, shall not affect the validity of the proceedings for the redemption of any other
Securities of such series or any other series. In the case of any redemption of Securities prior to the expiration of any restriction
on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee
with an Officer’s Certificate evidencing compliance with any such restriction.
Each such notice of redemption shall identify
the Securities to be redeemed (including CUSIP numbers, if any), specify the date fixed for redemption and the redemption price
at which Securities of that series are to be redeemed, and shall state that payment of the redemption price of such Securities
to be redeemed will be made at the office or agency of the Company, upon presentation and surrender of such Securities, that interest
accrued to the date fixed for redemption will be paid as specified in said notice, that from and after said date interest will
cease to accrue and that the redemption is from a sinking fund, if such is the case. If less than all the Securities of a series
are to be redeemed, the notice to the holders of Securities of that series to be redeemed in part shall specify the particular
Securities to be so redeemed.
In case any Security is to be redeemed in
part only, the notice that relates to such Security shall state the portion of the principal amount thereof to be redeemed, and
shall state that on and after the redemption date, upon surrender of such Security, a new Security or Securities of such series
in principal amount equal to the unredeemed portion thereof will be issued.
(b) If less than all the Securities of a
series are to be redeemed, the Company shall give the Trustee at least 45 days’ notice (unless a shorter notice shall be
satisfactory to the Trustee) in advance of the date fixed for redemption as to the aggregate principal amount of Securities of
the series to be redeemed, and thereupon the Securities to be redeemed shall be selected, by lot, on a pro rata basis, or in such
other manner as the Company shall deem appropriate and fair in its discretion, and in the case of Global Securities, in accordance
with the applicable rules and procedures of the Depositary, and that may provide for the selection of a portion or portions (equal
to a minimum of one thousand U.S. dollars ($1,000) or any integral multiple in excess thereof) of the principal amount of such
Securities of a denomination larger than $1,000, the Securities to be redeemed and shall thereafter promptly notify the Company
in writing of the numbers of the Securities to be redeemed, in whole or in part. The Company may, if and whenever it shall so elect,
by delivery of instructions signed on its behalf by an Officer, instruct the Trustee or any paying agent to call all or any part
of the Securities of a particular series for redemption and to give notice of redemption in the manner set forth in this Section,
such notice to be in the name of the Company or its own name as the Trustee or such paying agent may deem advisable. In any case
in which notice of redemption is to be given by the Trustee or any such paying agent, the Company shall deliver or cause to be
delivered to, or permit to remain with, the Trustee or such paying agent, as the case may be, such Security Register, transfer
books or other records, or suitable copies or extracts therefrom, sufficient to enable the Trustee or such paying agent to give
any notice by mail that may be required under the provisions of this Section.
Section 3.03 Payment Upon Redemption.
(a) If the giving of notice of redemption
shall have been completed as above provided, the Securities or portions of Securities of the series to be redeemed specified in
such notice shall become due and payable on the date and at the place stated in such notice at the applicable redemption price,
together with interest accrued to, but excluding, the date fixed for redemption and interest on such Securities or portions of
Securities shall cease to accrue on and after the date fixed for redemption, unless the Company shall default in the payment of
such redemption price and accrued interest with respect to any such Security or portion thereof. On presentation and surrender
of such Securities on or after the date fixed for redemption at the place of payment specified in the notice, said Securities shall
be paid and redeemed at the applicable redemption price for such series, together with interest accrued thereon to, but excluding,
the date fixed for redemption (but if the date fixed for redemption is an Interest Payment Date, the interest installment payable
on such date shall be payable to the registered holder at the close of business on the applicable record date pursuant to Section
2.03).
(b) Upon presentation of any Security of
such series that is to be redeemed in part only, the Company shall execute and the Trustee shall authenticate and the office or
agency where the Security is presented shall deliver to the Securityholder thereof, at the expense of the Company, a new Security
of the same series of authorized denominations in principal amount equal to the unredeemed portion of the Security so presented.
Section 3.04 Sinking Fund.
The provisions of Section 3.04, Section
3.05 and Section 3.06 shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise
specified as contemplated by Section 2.01 for Securities of such series.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,”
and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as
an “optional sinking fund payment”. If provided for by the terms of Securities of any series, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 3.05. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of Securities of such series.
Section 3.05 Satisfaction of Sinking
Fund Payments with Securities.
The Company (i) may deliver Outstanding
Securities of a series and (ii) may apply as a credit Securities of a series that have been redeemed either at the election of
the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant
to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series,
provided that such Securities have not been previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the redemption price specified in such Securities for redemption through operation of the sinking fund
and the amount of such sinking fund payment shall be reduced accordingly.
Section 3.06 Redemption of Securities
for Sinking Fund.
Not less than 45 days prior to each sinking
fund payment date for any series of Securities (unless a shorter period shall be satisfactory to the Trustee), the Company will
deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of the series, the portion thereof, if any, that is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 3.05 and the basis for such credit and will, together with such Officer’s Certificate,
deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date the
Securities to be redeemed upon such sinking fund payment date shall be selected in the manner specified in Section 3.02 and the
Company shall cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner
provided in Section 3.02. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Section 3.03.
Article
4.
COVENANTS
Section 4.01 Payment of Principal,
Premium and Interest.
The Company will duly and punctually pay
or cause to be paid the principal of (and premium, if any) and interest on the Securities of that series at the time and place
and in the manner provided herein and established with respect to such Securities. Payments of principal on the Securities may
be made at the time provided herein and established with respect to such Securities by U.S. dollar check drawn on and mailed to
the address of the Securityholder entitled thereto as such address shall appear in the Security Register, or U.S. dollar wire transfer
to, a U.S. dollar account if such Securityholder shall have furnished wire instructions to the Trustee no later than 15 days prior
to the relevant payment date. Payments of interest on the Securities may be made at the time provided herein and established with
respect to such Securities by U.S. dollar check mailed to the address of the Securityholder entitled thereto as such address shall
appear in the Security Register, or U.S. dollar wire transfer to, a U.S. dollar account if such Securityholder shall have furnished
wire instructions in writing to the Security Registrar and the Trustee no later than 15 days prior to the relevant payment
date.
Section 4.02 Maintenance of Office
or Agency.
So long as any series of the Securities
remain Outstanding, the Company agrees to maintain an office or agency with respect to each such series and at such other location
or locations as may be designated as provided in this Section 4.02, where (i) Securities of that series may be presented for payment,
(ii) Securities of that series may be presented as herein above authorized for registration of transfer and exchange, and (iii)
notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be given or served,
such designation to continue with respect to such office or agency until the Company shall, by written notice signed by any officer
authorized to sign an Officer’s Certificate and delivered to the Trustee, designate some other office or agency for such
purposes or any of them. If at any time the Company shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, notices and
demands. The Company initially appoints the Corporate Trust Office of the Trustee as its paying agent with respect to the Securities;
provided that, no office of the Trustee shall be an office or agency for the purpose of service of legal process against
the Company.
Section 4.03 Paying Agents.
(a) If the Company shall appoint one or
more paying agents for all or any series of the Securities, other than the Trustee, the Company will cause each such paying agent
to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions
of this Section:
(1) that it will hold all sums held by it
as such agent for the payment of the principal of (and premium, if any) or interest on the Securities of that series (whether such
sums have been paid to it by the Company or by any other obligor of such Securities) in trust for the benefit of the Persons entitled
thereto;
(2) that it will give the Trustee notice of
any failure by the Company (or by any other obligor of such Securities) to make any payment of the principal of (and premium, if
any) or interest on the Securities of that series when the same shall be due and payable;
(3) that it will, at any time during the continuance
of any failure referred to in the preceding paragraph (a)(2) above, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such paying agent; and
(4) that it will perform all other duties
of paying agent as set forth in this Indenture.
(b) If the Company shall act as its own
paying agent with respect to any series of the Securities, it will on or before each due date of the principal of (and premium,
if any) or interest on Securities of that series, set aside, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay such principal (and premium, if any) or interest so becoming due on Securities of that series until
such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of such
action, or any failure (by it or any other obligor on such Securities) to take such action. Whenever the Company shall have one
or more paying agents for any series of Securities, it will, prior to each due date of the principal of (and premium, if any) or
interest on any Securities of that series, deposit with the paying agent a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium
or interest, and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of this action or failure
so to act.
(c) Notwithstanding anything in this Section
to the contrary, (i) the agreement to hold sums in trust as provided in this Section is subject to the provisions of Section 11.05,
and (ii) the Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any
other purpose, pay, or direct any paying agent to pay, to the Trustee all sums held in trust by the Company or such paying agent,
such sums to be held by the Trustee upon the same terms and conditions as those upon which such sums were held by the Company or
such paying agent; and, upon such payment by the Company or any paying agent to the Trustee, the Company or such paying agent shall
be released from all further liability with respect to such money.
Section 4.04 Appointment to Fill Vacancy
in Office of Trustee.
The Company, whenever necessary to avoid
or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall
at all times be a Trustee hereunder.
Article
5.
SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 5.01 Company to Furnish Trustee
Names and Addresses of Securityholders.
The Company will furnish or cause to be
furnished to the Trustee (a) within 15 days after each regular record date (as defined in Section 2.03) a list, in such form as
the Trustee may reasonably require, of the names and addresses of the holders of each series of Securities as of such regular record
date, provided that the Company shall not be obligated to furnish or cause to furnish such list at any time that the list
shall not differ in any respect from the most recent list furnished to the Trustee by the Company and (b) at such other times as
the Trustee may request in writing within 30 days after the receipt by the Company of any such request, a list of similar form
and content as of a date not more than 15 days prior to the time such list is furnished; provided, however, that,
in either case, no such list need be furnished for any series for which the Trustee shall be the Security Registrar.
Section 5.02 Preservation of Information;
Communications with Securityholders.
(a) The Trustee shall preserve, in as current
a form as is reasonably practicable, all information as to the names and addresses of the holders of Securities contained in the
most recent list furnished to it as provided in Section 5.01 and as to the names and addresses of holders of Securities received
by the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b) The Trustee may destroy any list furnished
to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided
in Section 312(b) of the Trust Indenture Act with other Securityholders with respect to their rights under this Indenture or under
the Securities, and, in connection with any such communications, the Trustee shall satisfy its obligations under Section 312(b)
of the Trust Indenture Act in accordance with the provisions of Section 312(b) of the Trust Indenture Act.
Section 5.03 Reports by the Company.
(a) The Company will at all times comply
with Section 314(a) of the Trust Indenture Act. The Company covenants and agrees to provide (which delivery may be via electronic
mail) to the Trustee within 30 days, after the Company files the same with the Commission, copies of the annual reports and of
the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) that the Company is required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; provided, however, the Company shall not be required to deliver to the Trustee
any correspondence filed with the Commission or any materials for which the Company has sought and received confidential treatment
by the Commission; and provided further, that so long as such filings by the Company are available on the Commission’s
Electronic Data Gathering, Analysis and Retrieval System (EDGAR), or any successor system, such filings shall be deemed to have
been delivered to the Trustee for purposes hereof without any further action required by the Company. For the avoidance of doubt,
a failure by the Company to file annual reports, information and other reports with the Commission within the time period prescribed
thereof by the Commission shall not be deemed a breach of this Section 5.03.
(b) Delivery of reports, information and
documents to the Trustee under Section 5.03 is for informational purposes only and the information and the Trustee’s receipt
of the foregoing shall not constitute actual or constructive notice of any information contained therein, or determinable from
information contained therein including the Company’s compliance with any of their covenants thereunder (as to which the
Trustee is entitled to rely exclusively on an Officer’s Certificate). The Trustee is under no duty to examine any such reports,
information or documents delivered to the Trustee or filed with the Commission via EDGAR to ensure compliance with the provision
of this Indenture or to ascertain the correctness or otherwise of the information or the statements contained therein. The Trustee
shall have no responsibility or duty whatsoever to ascertain or determine whether the above referenced filings with the Commission
on EDGAR (or any successor system) has occurred.
Section 5.04 Reports by the Trustee.
(a) If required by Section 313(a) of the
Trust Indenture Act, the Trustee, within sixty (60) days after each May 1, shall send to the Securityholders a brief report dated
as of such May 1, which complies with Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section
313(b) and 313(c) of the Trust Indenture Act.
(c) A copy of each such report shall, at
the time of such transmission to Securityholders, be filed by the Trustee with the Company, with each securities exchange upon
which any Securities are listed (if so listed) and also with the Commission. The Company agrees to notify the Trustee when any
Securities become listed on any securities exchange.
Article
6.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 6.01 Events of Default.
(a) Whenever used herein with respect to
Securities of a particular series, “Event of Default” means any one or more of the following events that has occurred
and is continuing:
(1) the Company defaults in the payment of
any installment of interest upon any of the Securities of that series, as and when the same shall become due and payable, and such
default continues for a period of 90 days; provided, however, that a valid extension of an interest payment period
by the Company in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment
of interest for this purpose;
(2) the Company defaults in the payment of
the principal of (or premium, if any, on) any of the Securities of that series as and when the same shall become due and payable
whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by any sinking or analogous fund
established with respect to that series; provided, however, that a valid extension of the maturity of such Securities
in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment of principal or
premium, if any;
(3) the Company fails to observe or perform
any other of its covenants or agreements with respect to that series contained in this Indenture or otherwise established with
respect to that series of Securities pursuant to Section 2.01 hereof (other than a covenant or agreement that has been expressly
included in this Indenture solely for the benefit of one or more series of Securities other than such series) for a period of 90
days after the date on which written notice of such failure, requiring the same to be remedied and stating that such notice is
a “Notice of Default” hereunder, shall have been given to the Company by the Trustee, by registered or certified mail,
or to the Company and the Trustee by the holders of at least 25% in principal amount of the Securities of that series at the time
Outstanding;
(4) the Company pursuant to or within the
meaning of any Bankruptcy Law (i) commences a voluntary case, (ii) consents to the entry of an order for relief against it in an
involuntary case, (iii) consents to the appointment of a Custodian of it or for all or substantially all of its property or (iv)
makes a general assignment for the benefit of its creditors; or
(5) a court of competent jurisdiction enters
an order under any Bankruptcy Law that (i) is for relief against the Company in an involuntary case, (ii) appoints a Custodian
of the Company for all or substantially all of its property or (iii) orders the liquidation of the Company, and the order or decree
remains unstayed and in effect for 90 days.
(b) In each and every such case (other than
an Event of Default specified in clause (a)(4) or clause (a)(5) above), unless the principal of all the Securities of that series
shall have already become due and payable, either the Trustee or the holders of not less than 25% in aggregate principal amount
of the Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by
such Securityholders), may declare the principal of (and premium, if any, on) and accrued and unpaid interest, if any, on all the
Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately
due and payable. If an Event of Default specified in clause (a)(4) or clause (a)(5) above occurs, the principal of and accrued
and unpaid interest on all the Securities of that series shall automatically be immediately due and payable without any declaration
or other act on the part of the Trustee or the holders of the Securities.
(c) At any time after the principal of (and
premium, if any, on) and accrued and unpaid interest on the Securities of that series shall have been so declared due and payable,
and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided,
the holders of a majority in aggregate principal amount of the Securities of that series then Outstanding hereunder, by written
notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (i) the Company has paid
or deposited with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of that series
and the principal of (and premium, if any, on) any and all Securities of that series that shall have become due otherwise than
by acceleration (with interest upon such principal and premium, if any, and, to the extent that such payment is enforceable under
applicable law, upon overdue installments of interest, at the rate per annum expressed in the Securities of that series to the
date of such payment or deposit) and the amount payable to the Trustee under Section 7.06, and (ii) any and all Events of Default
under the Indenture with respect to such series, other than the nonpayment of principal on (and premium, if any, on) and accrued
and unpaid interest on Securities of that series that shall not have become due by their terms, shall have been remedied or waived
as provided in Section 6.06.
No such rescission and annulment shall extend
to or shall affect any subsequent default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded
to enforce any right with respect to Securities of that series under this Indenture and such proceedings shall have been discontinued
or abandoned because of such rescission or annulment or for any other reason or shall have been determined adversely to the Trustee,
then and in every such case, subject to any determination in such proceedings, the Company and the Trustee shall be restored respectively
to their former positions and rights hereunder, and all rights, remedies and powers of the Company and the Trustee shall continue
as though no such proceedings had been taken.
Section 6.02 Collection of Indebtedness
and Suits for Enforcement by Trustee.
(a) The Company covenants that (i) in case
it shall default in the payment of any installment of interest on any of the Securities of a series, or in any payment required
by any sinking or analogous fund established with respect to that series as and when the same shall have become due and payable,
and such default shall have continued for a period of 90 days, or (ii) in case it shall default in the payment of the principal
of (or premium, if any, on) any of the Securities of a series when the same shall have become due and payable, whether upon maturity
of the Securities of a series or upon redemption or upon declaration or otherwise then, upon demand of the Trustee, the Company
will pay to the Trustee, for the benefit of the holders of the Securities of that series, the whole amount that then shall have
been become due and payable on all such Securities for principal (and premium, if any) or interest, or both, as the case may be,
with interest upon the overdue principal (and premium, if any) and (to the extent that payment of such interest is enforceable
under applicable law) upon overdue installments of interest at the rate per annum expressed in the Securities of that series; and,
in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, and the amount payable
to the Trustee under Section 7.06.
(b) If the Company shall fail to pay such
amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered
to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute
any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Company
or other obligor upon the Securities of that series and collect the moneys adjudged or decreed to be payable in the manner provided
by law or equity out of the property of the Company or other obligor upon the Securities of that series, wherever situated.
(c) In case of any receivership, insolvency,
liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial proceedings affecting the Company,
or its creditors or property, the Trustee shall have power to intervene in such proceedings and take any action therein that may
be permitted by the court and shall (except as may be otherwise provided by law) be entitled to file such proofs of claim and other
papers and documents as may be necessary or advisable in order to have the claims of the Trustee and of the holders of Securities
of such series allowed for the entire amount due and payable by the Company under the Indenture at the date of institution of such
proceedings and for any additional amount that may become due and payable by the Company after such date, and to collect and receive
any moneys or other property payable or deliverable on any such claim, and to distribute the same after the deduction of the amount
payable to the Trustee under Section 7.06; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized
by each of the holders of Securities of such series to make such payments to the Trustee, and, in the event that the Trustee shall
consent to the making of such payments directly to such Securityholders, to pay to the Trustee any amount due it under Section
7.06.
(d) All rights of action and of asserting
claims under this Indenture, or under any of the terms established with respect to Securities of that series, may be enforced by
the Trustee without the possession of any of such Securities, or the production thereof at any trial or other proceeding relative
thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for payment to the Trustee of any amounts due under Section 7.06, be for the
ratable benefit of the holders of the Securities of such series.
In case of an Event of Default hereunder,
the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity
or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in the Indenture or
in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee
by this Indenture or by law.
Nothing contained herein shall be deemed
to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities of that series or the rights of any Securityholder thereof or to
authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
Section 6.03 Application of Moneys
Collected.
(a) Any moneys or property collected by
the Trustee pursuant to this Article with respect to a particular series of Securities shall be applied in the following order,
at the date or dates fixed by the Trustee and, in case of the distribution of such moneys or property on account of principal (or
premium, if any) or interest, upon presentation of the Securities of that series, and notation thereon of the payment, if only
partially paid, and upon surrender thereof if fully paid:
(1) FIRST:
To the payment of costs and expenses of collection and of all amounts payable to the Trustee under this Indenture;
(2) SECOND:
To the payment of the amounts then due and unpaid upon Securities of such series for principal (and premium, if any) and interest,
in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal (and premium, if any) and interest, respectively; and
(3) THIRD:
To the payment of the remainder, if any, to the Company or any other Person lawfully entitled thereto.
Section 6.04 Limitation on Suits.
No holder of any Security of any series
shall have any right by virtue or by availing of any provision of this Indenture to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless (i) such Securityholder previously shall have given to the Trustee written notice of an Event of Default
and of the continuance thereof with respect to the Securities of such series specifying such Event of Default, as hereinbefore
provided; (ii) the holders of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding
shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder;
(iii) such Securityholder or Securityholders shall have offered, and if requested, provided to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request; (iv) the Trustee
for 90 days after its receipt of such notice, request and offer of indemnity, shall have failed to institute any such action, suit
or proceeding and (v) during such 90-day period, the holders of a majority in principal amount of the Securities of that series
do not give the Trustee a direction inconsistent with the request.
Notwithstanding anything contained herein
to the contrary or any other provisions of this Indenture, the right of any holder of any Security to receive payment of the principal
of (and premium, if any) and interest on such Security, as therein provided, on or after the respective due dates expressed in
such Security (or in the case of redemption, on the redemption date), or to institute suit for the enforcement of any such payment
on or after such respective dates or redemption date, shall not be impaired or affected without the consent of such holder and
by accepting a Security hereunder it is expressly understood, intended and covenanted by the taker and holder of every Security
of such series with every other such taker and holder and the Trustee, that no one or more holders of Securities of such series
shall have any right in any manner whatsoever by virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of the holders of any other of such Securities, or to obtain or seek to obtain priority over or preference
to any other such holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all holders of Securities of such series. For the protection and enforcement of the provisions of
this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 6.05 Rights and Remedies Cumulative;
Delay or Omission Not Waiver.
(a) Except as otherwise provided in Section
2.07, all powers and remedies given by this Article to the Trustee or to the Securityholders shall, to the extent permitted by
law, be deemed cumulative and not exclusive of any other powers and remedies available to the Trustee or the holders of the Securities,
by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to such Securities.
(b) No delay or omission of the Trustee
or of any holder of any of the Securities to exercise any right or power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 6.04, every power and remedy given by this Article or by law to the Trustee
or the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
Section 6.06 Control by Securityholders.
The holders of a majority in aggregate principal
amount of the Securities of any series at the time Outstanding, determined in accordance with Section 8.04, shall have the right
to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee with respect to such series; provided, however, that such direction shall not be
in conflict with any rule of law or with this Indenture or subject the Trustee in its sole discretion to personal liability. Subject
to the provisions of Section 7.01, the Trustee shall have the right to decline to follow any such direction if the Trustee
in good faith shall, by a Responsible Officer or officers of the Trustee, determine that the proceeding so directed, subject to
the Trustee’s duties under the Trust Indenture Act, would involve the Trustee in personal liability or might be unduly prejudicial
to the Securityholders not involved in the proceeding (it being understood that the Trustee has no duty to determine whether any
such direction is prejudicial to any Securityholder). The holders of a majority in aggregate principal amount of the Securities
of any series at the time Outstanding affected thereby, determined in accordance with Section 8.04, may on behalf of the holders
of all of the Securities of such series waive any past default in the performance of any of the covenants contained herein or established
pursuant to Section 2.01 with respect to such series and its consequences, except a default in the payment of the principal of,
or premium, if any, or interest on, any of the Securities of that series as and when the same shall become due by the terms of
such Securities otherwise than by acceleration (unless such default has been cured and a sum sufficient to pay all matured installments
of interest and principal and any premium has been deposited with the Trustee (in accordance with Section 6.01(c))). Upon any such
waiver, the default covered thereby shall be deemed to be cured for all purposes of this Indenture and the Company, the Trustee
and the holders of the Securities of such series shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 6.07 Undertaking to Pay Costs.
All parties to this Indenture agree, and
each holder of any Securities by such holder’s acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made
by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted
by any Securityholder, or group of Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities
of any series, or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of (or premium,
if any) or interest on any Security of such series, on or after the respective due dates expressed in such Security or established
pursuant to this Indenture.
Article
7.
CONCERNING THE TRUSTEE
Section 7.01 Certain Duties and Responsibilities
of Trustee.
(a) The Trustee, prior to the occurrence
of an Event of Default with respect to the Securities of a series and after the curing of all Events of Default with respect to
the Securities of that series that may have occurred, shall undertake to perform with respect to the Securities of such series
such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants shall be read into this
Indenture against the Trustee. In case an Event of Default with respect to the Securities of a series has occurred (that has not
been cured or waived), the Trustee shall exercise with respect to Securities of that series such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(b) No provision of this Indenture shall
be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) prior to the occurrence of an Event of
Default with respect to the Securities of a series and after the curing or waiving of all such Events of Default with respect to
that series that may have occurred:
(i) the duties and obligations of the Trustee
shall with respect to the Securities of such series be determined solely by the express provisions of this Indenture, and the Trustee
shall not be liable with respect to the Securities of such series except for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against
the Trustee; and
(ii) in the absence of negligence or willful
misconduct on the part of the Trustee, the Trustee may with respect to the Securities of such series conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy
of mathematical calculations or other facts stated therein);
(2) the Trustee shall not be liable to any
Securityholder or to any other Person for any error of judgment made in good faith by a Responsible Officer or Responsible Officers
of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in accordance with the direction of the holders of not less than
a majority in principal amount of the Securities of any series at the time Outstanding relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee
under this Indenture with respect to the Securities of that series;
(4) none of the provisions contained in this
Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance
of any of its duties or in the exercise of any of its rights or powers if there is reasonable ground for believing that the repayment
of such funds or liability is not reasonably assured to it under the terms of this Indenture or adequate indemnity against such
risk is not reasonably assured to it;
(5) the Trustee shall not be required to give
any bond or surety in respect of the performance of its powers or duties hereunder;
(6) the permissive right of the Trustee to
do things enumerated in this Indenture shall not be construed as a duty of the Trustee; and
(7) no Trustee shall have any duty or responsibility
for any act or omission of any other Trustee appointed with respect to a series of Securities hereunder.
Section 7.02 Certain Rights of Trustee.
Except as otherwise provided in Section 7.01:
(a) The Trustee may conclusively rely and
shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, judgment, approval, bond, security or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) Any request, direction, order or demand
of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution or an instrument signed in the name of the
Company by any authorized Officer of the Company (unless other evidence in respect thereof is specifically prescribed herein);
(c) The Trustee may consult with counsel
of its selection and the opinion or written advice of such counsel or, if requested, any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or omitted hereunder in good faith and in reliance thereon;
(d) The Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders
pursuant to the provisions of this Indenture, unless such Securityholders shall have offered, and if requested, provided to the
Trustee security or indemnity acceptable to the Trustee against the costs, expenses and liabilities that may be incurred therein
or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of
Default with respect to a series of the Securities (that has not been cured or waived), to exercise with respect to Securities
of that series such of the rights and powers vested in it by this Indenture, and to use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs;
(e) The Trustee shall not be liable for
any action taken or omitted to be taken by it in good faith and believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Indenture;
(f) The Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, judgment, approval, bond, security, or other papers or documents or inquire as to the performance by the
Company of one of its covenants under this Indenture, unless requested in writing so to do by the holders of not less than a majority
in principal amount of the Outstanding Securities of the particular series affected thereby (determined as provided in Section 8.04);
provided, however, that if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require security or indemnity acceptable
to the Trustee against such costs, expenses or liabilities as a condition to so proceeding. The reasonable expense of every such
examination shall be paid by the Company or, if paid by the Trustee, shall be repaid by the Company upon demand;
(g) The Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall
not be responsible for the acts or omissions of any agent or attorney appointed with due care by it hereunder;
(h) In no event shall the Trustee be responsible
or liable for special, indirect, punitive, incidental or consequential loss or damage of any kind whatsoever (including, but not
limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless
of the form of action;
(i) The Trustee agrees to accept and act
upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured
electronic methods; provided, however, that such instructions or directions shall be signed by an authorized representative
of the party providing such instructions or directions. If the party elects to give the Trustee e-mail or facsimile instructions
(or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s
understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses
arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such
instructions conflict or are inconsistent with a subsequent written instruction. The party providing electronic instructions agrees
to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including
without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third
parties. The Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals
and/or titles of officers authorized at such time to furnish the Trustee with Officer’s Certificates, Company Orders and
any other matters or directions pursuant to this Indenture;
(j) The rights, privileges, protections,
immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and
shall be enforceable by, the Trustee in each of its capacities hereunder and under the Securities, and each agent, custodian or
other person employed to act under this Indenture; and
(k) The Trustee shall not be deemed to have
knowledge of any Default or Event of Default (other than an Event of Default constituting the failure to pay the interest on, or
the principal of, the Securities if the Trustee also serves the paying agent for such Securities) until the Trustee shall have
received written notification in the manner set forth in this Indenture or a Responsible Officer of the Trustee shall have obtained
actual knowledge.
Section 7.03 Trustee Not Responsible
for Recitals or Issuance or Securities.
(a) The recitals contained herein and, in
the Securities, shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness
of the same. The Trustee shall not be responsible for any statement in any registration statement, prospectus, or any other document
in connection with the sale of Securities. The Trustee shall not be responsible for any rating on the Securities or any action
or omission of any rating agency.
(b) The Trustee makes no representations
as to the validity or sufficiency of this Indenture or of the Securities.
(c) The Trustee shall not be accountable
for the use or application by the Company of any of the Securities or of the proceeds of such Securities, or for the use or application
of any moneys paid over by the Trustee in accordance with any provision of this Indenture or established pursuant to Section 2.01,
or for the use or application of any moneys received by any paying agent other than the Trustee.
Section 7.04 May Hold Securities.
The Trustee or any paying agent or Security
Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would
have if it were not Trustee, paying agent or Security Registrar.
Section 7.05 Moneys Held in Trust.
Subject to the provisions of Section 11.05,
all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated from other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any moneys received by it hereunder except such as it may agree with the Company to pay thereon.
Section 7.06 Compensation and Reimbursement.
(a) The Company shall pay to the Trustee
for each of its capacities hereunder from time to time compensation for its services as the Company and the Trustee shall from
time to time agree upon in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee
of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred by
it. Such expenses shall include the reasonable compensation and expenses of the Trustee’s agents and counsel.
(b) The Company shall indemnify each of
the Trustee in each of its capacities hereunder against any loss, liability or expense (including the cost of defending itself
and including the reasonable compensation and expenses of the Trustee’s agents and counsel) incurred by it except as set
forth in Section 7.06(c) in the exercise or performance of its powers, rights or duties under this Indenture as Trustee or Agent
and the enforcement of this Indenture (including this Section). 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 separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for
any settlement made without its consent, which consent shall not be unreasonably withheld. This indemnification shall apply to
officers, directors, employees, shareholders and agents of the Trustee.
(c) The Company need not reimburse any expense
or indemnify against any loss or liability incurred by the Trustee or by any officer, director, employee, shareholder or agent
of the Trustee through negligence or willful misconduct as determined by a final order of a court of competent jurisdiction.
(d) To ensure the Company’s payment
obligations in this Section, the Trustee shall have a lien prior to the Securities on all funds or property held or collected by
the Trustee, except that held in trust to pay principal of or interest on particular Securities. When the Trustee incurs expenses
or renders services in connection with an Event of Default specified in Section 6.01(a)(4) or Section 6.01(a)(5), the expenses
(including the reasonable fees and expenses of its counsel) and the compensation for services in connection therewith are to constitute
expenses of administration under any bankruptcy law. The provisions of this Section 7.06 shall survive the termination of this
Indenture and the resignation or removal of the Trustee.
Section 7.07 Reliance on Officer’s
Certificate.
Except as otherwise provided in Section
7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it reasonably necessary or desirable
that a matter be proved or established prior to taking or suffering or omitting to take any action hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or willful misconduct on
the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate delivered to the
Trustee and such certificate, in the absence of negligence or willful misconduct on the part of the Trustee, shall be full warrant
to the Trustee for any action taken, suffered or omitted to be taken by it under the provisions of this Indenture upon the faith
thereof.
Section 7.08 Disqualification; Conflicting
Interests.
If the Trustee has or shall acquire any
“conflicting interest” within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the Company
shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section 7.09 Corporate Trustee Required;
Eligibility.
There shall at all times be a Trustee with
respect to the Securities issued hereunder which shall at all times be a corporation organized and doing business under the laws
of the United States of America or any state or territory thereof or of the District of Columbia, or a corporation or other Person
permitted to act as trustee by the Commission, authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision or examination by federal,
state, territorial, or District of Columbia authority.
If such corporation or other Person publishes
reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such corporation or other Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of condition so published. The Company may not, nor
may any Person directly or indirectly controlling, controlled by, or under common control with the Company, serve as Trustee. In
case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.10.
Section 7.10 Resignation and Removal;
Appointment of Successor.
(a) The Trustee or any successor hereafter
appointed may at any time resign with respect to the Securities of one or more series by giving written notice thereof to the Company
and the Securityholders of such series. Upon receiving such notice of resignation, the Company shall promptly appoint a successor
trustee with respect to Securities of such series by written instrument, in duplicate, executed by order of the Board of Directors,
one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor
trustee shall have been so appointed and have accepted appointment within 30 days after the sending of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee with respect
to Securities of such series, or any Securityholder of that series who has been a bona fide holder of a Security or Securities
for at least six months may on behalf of himself and all others similarly situated, petition any such court for the appointment
of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any one of the following
shall occur:
(1) the Trustee shall fail to comply with
the provisions of Section 7.08 after written request therefor by the Company or by any Securityholder who has been a bona fide
holder of a Security or Securities for at least six months; or
(2) the Trustee shall cease to be eligible
in accordance with the provisions of Section 7.09 and shall fail to resign after written request therefor by the Company or by
any such Securityholder; or
(3) the Trustee shall become incapable of
acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the Trustee
or of its property shall be appointed or consented to, or any public officer shall take charge or control of the Trustee or of
its property or affairs for the purpose of rehabilitation, conservation or liquidation; then, in any such case, the Company may
remove the Trustee with respect to all Securities and appoint a successor trustee by written instrument, in duplicate, executed
by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the
successor trustee, or any Securityholder who has been a bona fide holder of a Security or Securities for at least six months may,
on behalf of that holder and all others similarly situated, petition any court of competent jurisdiction, at the expense of the
Company, for the removal of the Trustee and the appointment of a successor trustee. Such court may thereupon after such notice,
if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate
principal amount of the Securities of any series at the time Outstanding may at any time, at the expense of the Company, remove
the Trustee with respect to such series by so notifying the Trustee and the Company and may appoint a successor Trustee for such
series with the consent of the Company.
(d) Any resignation or removal of the Trustee
and appointment of a successor trustee with respect to the Securities of a series pursuant to any of the provisions of this Section
shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant
to this Section may be appointed with respect to the Securities of one or more series or all of such series, and at any time there
shall be only one Trustee with respect to the Securities of any particular series.
Section 7.11 Acceptance of Appointment
by Successor.
(a) In case of the appointment hereunder
of a successor trustee with respect to all Securities, every such successor trustee so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor
trustee, such retiring Trustee shall, upon payment of any amounts due to it pursuant to the provisions of Section 7.06, execute
and deliver an instrument transferring to such successor trustee all the rights, powers, and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder
of a successor trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and
each successor trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental
hereto wherein each successor trustee shall accept such appointment and which (i) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor trustee relates,
(ii) shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust,
that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered
by any other such Trustee and that no Trustee shall be responsible for any act or failure to act on the part of any other Trustee
hereunder; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein, such retiring Trustee shall with respect to the Securities of that or those
series to which the appointment of such successor trustee relates have no further responsibility for the exercise of rights and
powers or for the performance of the duties and obligations vested in the Trustee under this Indenture, and each such successor
trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor trustee relates;
but, on request of the Company or any successor trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor trustee, to the extent contemplated by such supplemental indenture, the property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the appointment of such successor trustee relates.
(c) Upon request of any such successor trustee,
the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor trustee
all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept its
appointment unless at the time of such acceptance such successor trustee shall be qualified and eligible under this Article.
(e) Upon acceptance of appointment by a
successor trustee as provided in this Section, the Company shall send notice of the succession of such trustee hereunder to the
Securityholders. If the Company fails to transmit such notice within 10 days after acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be transmitted at the expense of the Company.
Section 7.12 Merger, Conversion, Consolidation
or Succession to Business.
Any corporation into which the Trustee may
be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of
the Trustee, including the administration of the trust created by this Indenture, shall be the successor of the Trustee hereunder,
provided that such corporation shall be qualified under the provisions of Section 7.08 and eligible under the provisions
of Section 7.09, without the execution or filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 7.13 Preferential Collection
of Claims Against the Company.
The Trustee shall comply with Section 311(a)
of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee
who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
Section 7.14 Notice of Default.
If any Event of Default occurs and is continuing
and if such Event of Default is actually known to a Responsible Officer of the Trustee, the Trustee shall send to each Securityholder
in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act notice of the Event of Default within the
earlier of 90 days after it occurs and 30 days after it is actually known to a Responsible Officer of the Trustee or written notice
of it is received by the Trustee, unless such Event of Default has been cured; provided, however, that, except in
the case of a default in the payment of the principal of (or premium, if any) or interest on any Security, the Trustee shall be
protected in withholding such notice if and so long as the Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Securityholders.
Article
8.
CONCERNING THE SECURITYHOLDERS
Section 8.01 Evidence of Action by
Securityholders.
Whenever in this Indenture it is provided
that the holders of a majority or specified percentage in aggregate principal amount of the Securities of a particular series may
take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any
other action), the fact that at the time of taking any such action the holders of such majority or specified percentage of that
series have joined therein may be evidenced by any instrument or any number of instruments of similar tenor executed by such holders
of Securities of that series in person or by agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders
of any series any request, demand, authorization, direction, notice, consent, waiver or other action, the Company may, at its option,
as evidenced by an Officer’s Certificate, fix in advance a record date for such series for the determination of Securityholders
entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action, but the Company shall
have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver
or other action may be given before or after the record date, but only the Securityholders of record at the close of business on
the record date shall be deemed to be Securityholders for the purposes of determining whether Securityholders of the requisite
proportion of Outstanding Securities of that series have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other action, and for that purpose the Outstanding Securities of that series shall be computed
as of the record date; provided, however, that no such authorization, agreement or consent by such Securityholders
on the record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not
later than six months after the record date.
Section 8.02 Proof of Execution by
Securityholders.
Subject to the provisions of Section 7.01,
proof of the execution of any instrument by a Securityholder (such proof will not require notarization) or his or her agent or
proxy and proof of the holding by any Person of any of the Securities shall be sufficient if made in the following manner:
(a) The fact and date of the execution by
any such Person of any instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership of Securities shall be
proved by the Security Register of such Securities or by a certificate of the Security Registrar thereof.
The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
Section 8.03 Who May be Deemed Owners.
Prior to the due presentment for registration
of transfer of any Security, the Company, the Trustee, any paying agent and any Security Registrar may deem and treat the Person
in whose name such Security shall be registered upon the books of the Security Registrar as the absolute owner of such Security
(whether or not such Security shall be overdue and notwithstanding any notice of ownership or writing thereon made by anyone other
than the Security Registrar) for the purpose of receiving payment of or on account of the principal of, premium, if any, and (subject
to Section 2.03) interest on such Security and for all other purposes; and neither the Company nor the Trustee nor any paying agent
nor any Security Registrar shall be affected by any notice to the contrary.
Section 8.04 Certain Securities Owned
by Company Disregarded.
In determining whether the holders of the
requisite aggregate principal amount of Securities of a particular series have concurred in any direction, consent or waiver under
this Indenture, the Securities of that series that are owned by the Company or any other obligor on the Securities of that series
or by any Person directly or indirectly controlling or controlled by or under common control with the Company or any other obligor
on the Securities of that series shall be disregarded and deemed not to be Outstanding for the purpose of any such determination,
except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent or
waiver, only Securities of such series that the Trustee actually knows are so owned shall be so disregarded. The Securities so
owned that have been pledged in good faith may be regarded as Outstanding for the purposes of this Section, if the pledgee shall
establish to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee
is not a Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company
or any such other obligor. In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
Section 8.05 Actions Binding on Future
Securityholders.
At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the holders of the majority or percentage
in aggregate principal amount of the Securities of a particular series specified in this Indenture in connection with such action,
any holder of a Security of that series that is shown by the evidence to be included in the Securities the holders of which have
consented to such action may, by filing written notice with the Trustee, and upon proof of holding as provided in Section 8.02,
revoke such action so far as concerns such Security. Except as aforesaid any such action taken by the holder of any Security shall
be conclusive and binding upon such holder and upon all future holders and owners of such Security, and of any Security issued
in exchange therefor, on registration of transfer thereof or in place thereof, irrespective of whether or not any notation in regard
thereto is made upon such Security. Any action taken by the holders of the majority or percentage in aggregate principal amount
of the Securities of a particular series specified in this Indenture in connection with such action shall be conclusively binding
upon the Company, the Trustee and the holders of all the Securities of that series.
Article
9.
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures
Without the Consent of Securityholders.
In addition to any supplemental indenture
otherwise authorized by this Indenture, the Company and the Trustee may from time to time and at any time enter into an indenture
or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as then in effect), without
the consent of the Securityholders, for one or more of the following purposes:
(a) to cure any ambiguity, defect, or inconsistency
herein or in the Securities of any series;
(b) to comply with Article 10;
(c) to provide for uncertificated Securities
in addition to or in place of certificated Securities;
(d) to add to the covenants, restrictions,
conditions or provisions relating to the Company for the benefit of the holders of all or any series of Securities (and if such
covenants, restrictions, conditions or provisions are to be for the benefit of less than all series of Securities, stating that
such covenants, restrictions, conditions or provisions are expressly being included solely for the benefit of such series), to
make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions
or provisions an Event of Default, or to surrender any right or power herein conferred upon the Company;
(e) to add to, delete from, or revise the
conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication, and delivery of
Securities, as herein set forth;
(f) to make any change that does not adversely
affect the rights of any Securityholder in any material respect;
(g) to provide for the issuance of and establish
the form and terms and conditions of the Securities of any series as provided in Section 2.01, to establish the form of any certifications
required to be furnished pursuant to the terms of this Indenture or any series of Securities, or to add to the rights of the holders
of any series of Securities;
(h) to evidence and provide for the acceptance
of appointment hereunder by a successor trustee;
(i) to conform the text of this Indenture,
any indentures supplemental hereto or the forms or terms of such series of Securities issued hereunder to any provision of the
“Description of Notes” section of the relevant offering document of such series to the extent that such provision in
such “Description of Notes” was intended to be a verbatim recitation of a provision of this Indenture, as provided
in an Officer’s Certificate; or
(j) to comply with any requirements of the
Commission or any successor in connection with the qualification of this Indenture under the Trust Indenture Act.
The Trustee is hereby authorized to join
with the Company in the execution of any such supplemental indenture, and to make any further appropriate agreements and stipulations
that may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental indenture that affects
the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by
the provisions of this Section may be executed by the Company and the Trustee without the consent of the holders of any of the
Securities at the time Outstanding, notwithstanding any of the provisions of Section 9.02.
Section 9.02 Supplemental Indentures
With Consent of Securityholders.
With the consent (evidenced as provided
in Section 8.01) of the holders of not less than a majority in aggregate principal amount of the Securities of each series affected
by such supplemental indenture or indentures at the time Outstanding, the Company, when authorized by a Board Resolution, and the
Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to
the provisions of the Trust Indenture Act as then in effect) for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner not covered
by Section 9.01 the rights of the holders of the Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the holders of each Security then Outstanding and affected thereby,
(a) extend the fixed maturity of any Securities of any series, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any premium payable upon the redemption thereof or (b) reduce the aforesaid
percentage of Securities, the holders of which are required to consent to any such supplemental indenture.
It shall not be necessary for the consent
of the Securityholders of any series affected thereby under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Section 9.03 Effect of Supplemental
Indentures.
Upon the execution of any supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, this Indenture shall, with respect to such series, be and be deemed
to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company and the holders of Securities of the series affected thereby shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture
for any and all purposes.
Section 9.04 Securities Affected by
Supplemental Indentures.
Securities of any series affected by a supplemental
indenture, authenticated and delivered after the execution of such supplemental indenture pursuant to the provisions of this Article
or of Section 10.01, may bear a notation in form approved by the Company, provided such form meets the requirements of any
securities exchange upon which such series may be listed, as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of that series so modified as to conform, in the opinion of the Board of Directors,
to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated
by the Trustee and delivered in exchange for the Securities of that series then Outstanding.
Section 9.05 Execution of Supplemental
Indentures.
Upon the request of the Company, accompanied
by its Board Resolutions authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall join with the Company in
the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties
or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be obligated to
enter into such supplemental indenture. The Trustee, subject to the provisions of Section 7.01, shall receive an Officer’s
Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article
is authorized or permitted by the terms of this Article, such supplemental indenture is the legal, valid and binding obligation
of the Company and that all conditions precedent to the execution of the supplemental indenture have been complied with.
Promptly after the execution by the Company
and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Company shall (or shall direct the
Trustee to) send a notice, setting forth in general terms the substance of such supplemental indenture, to the Securityholders
of all series affected thereby as their names and addresses appear upon the Security Register. Any failure of the Company to send,
or cause the sending of, such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
Article
10.
SUCCESSOR ENTITY
Section 10.01 Company May Consolidate,
Etc.
Nothing contained in this Indenture shall
prevent any consolidation or merger of the Company with or into any other Person (whether or not affiliated with the Company) or
successive consolidations or mergers in which the Company or its successor or successors shall be a party or parties, or shall
prevent any sale, conveyance, transfer or other disposition of the property of the Company or its successor or successors as an
entirety, or substantially as an entirety, to any other Person (whether or not affiliated with the Company or its successor or
successors); provided, however, the Company hereby covenants and agrees that, upon any such consolidation or merger
(in each case, if the Company is not the survivor of such transaction) or any such sale, conveyance, transfer or other disposition
(other than a sale, conveyance, transfer or other disposition to a Subsidiary of the Company), the due and punctual payment of
the principal of (premium, if any) and interest on all of the Securities of all series in accordance with the terms of each series,
according to their tenor, and the due and punctual performance and observance of all the covenants and conditions of this Indenture
with respect to each series or established with respect to such series pursuant to Section 2.01 to be kept or performed by the
Company shall be expressly assumed, by supplemental indenture (which shall conform to the provisions of the Trust Indenture Act,
as then in effect) reasonably satisfactory in form to the Trustee executed and delivered to the Trustee by the entity formed by
such consolidation, or into which the Company shall have been merged, or by the entity which shall have acquired such property.
Section 10.02 Successor Entity Substituted.
(a) In case of any such consolidation, merger,
sale, conveyance, transfer or other disposition and upon the assumption by the successor entity by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to the Trustee, of the obligations set forth under Section 10.01 on all of
the Securities of all series Outstanding, such successor entity shall succeed to and be substituted for the Company with the same
effect as if it had been named as the Company herein, and thereupon the predecessor corporation shall be relieved of all obligations
and covenants under this Indenture and the Securities.
(b) In case of any such consolidation, merger,
sale, conveyance, transfer or other disposition, such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
(c) Nothing contained in this Article shall
require any action by the Company in the case of a consolidation or merger of any Person into the Company where the Company is
the survivor of such transaction, or the acquisition by the Company, by purchase or otherwise, of all or any part of the property
of any other Person (whether or not affiliated with the Company).
Article
11.
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge
of Indenture.
If at any time: (a) the Company shall have
delivered to the Trustee for cancellation all Securities of a series theretofore authenticated and not delivered to the Trustee
for cancellation (other than any Securities that shall have been destroyed, lost or stolen and that shall have been replaced or
paid as provided in Section 2.07 and Securities for whose payment money or Governmental Obligations have theretofore been deposited
in trust or segregated and held in trust by the Company and thereupon repaid to the Company or discharged from such trust, as provided
in Section 11.05); or (b) all such Securities of a particular series not theretofore delivered to the Trustee for cancellation
shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and the Company shall deposit
or cause to be deposited with the Trustee as trust funds the entire amount in moneys or Governmental Obligations or a combination
thereof, sufficient in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay at maturity or upon redemption all Securities of that series not theretofore delivered
to the Trustee for cancellation, including principal (and premium, if any) and interest due or to become due to such date of maturity
or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other sums payable
hereunder with respect to such series by the Company then this Indenture shall thereupon cease to be of further effect with respect
to such series except for the provisions of Section 2.03, Section 2.05, Section 2.07, Section 4.01, Section 4.02, Section
4.03, Section 7.10, Section 11.05 and Section 13.04, that shall survive until the date of maturity or redemption date, as
the case may be, and Section 7.06 and Section 11.05, that shall survive to such date and thereafter, and the Trustee, on demand
of the Company and at the cost and expense of the Company shall execute such instruments reasonably requested by the Company acknowledging
satisfaction of and discharging this Indenture with respect to such series.
Section 11.02 Discharge of Obligations.
If at any time all such Securities of a
particular series not heretofore delivered to the Trustee for cancellation or that have not become due and payable as described
in Section 11.01 shall have been paid by the Company by depositing irrevocably with the Trustee as trust funds moneys or an amount
of Governmental Obligations sufficient to pay at maturity or upon redemption all such Securities of that series not theretofore
delivered to the Trustee for cancellation, including principal (and premium, if any) and interest due or to become due to such
date of maturity or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other
sums payable hereunder by the Company with respect to such series, then after the date such moneys or Governmental Obligations,
as the case may be, are deposited with the Trustee the obligations of the Company under this Indenture with respect to such series
shall cease to be of further effect except for the provisions of Section 2.03, Section 2.05, Section 2.07, Section 4.01, Section
4.02, Section 4.03, Section 7.06, Section 7.10, Section 11.05 and Section 13.04 hereof that shall survive until such Securities
shall mature and be paid. Thereafter, Section 7.06 and Section 11.05 shall survive.
Section 11.03 Deposited Moneys to be
Held in Trust.
All moneys or Governmental Obligations deposited
with the Trustee pursuant to Section 11.01 or Section 11.02 shall be held in trust and shall be available for payment as due,
either directly or through any paying agent (including the Company acting as its own paying agent), to the holders of the particular
series of Securities for the payment or redemption of which such moneys or Governmental Obligations have been deposited with the
Trustee.
Section 11.04 Payment of Moneys Held
by Paying Agents.
In connection with the satisfaction and
discharge of this Indenture all moneys or Governmental Obligations then held by any paying agent under the provisions of this Indenture
shall, upon demand of the Company, be paid to the Trustee and thereupon such paying agent shall be released from all further liability
with respect to such moneys or Governmental Obligations.
Section 11.05 Repayment to Company.
Subject to applicable abandoned property
law any moneys or Governmental Obligations deposited with any paying agent or the Trustee, or then held by the Company, in trust
for payment of principal of or premium, if any, or interest on the Securities of a particular series that are not applied but remain
unclaimed by the holders of such Securities for at least two years after the date upon which the principal of (and premium, if
any) or interest on such Securities shall have respectively become due and payable, or such other shorter period set forth in applicable
escheat or abandoned or unclaimed property law, shall be repaid to the Company on May 31 of each year or upon the Company’s
request or (if then held by the Company) shall be discharged from such trust; and thereupon the paying agent and the Trustee shall
be released from all further liability with respect to such moneys or Governmental Obligations, and the holder of any of the Securities
entitled to receive such payment shall thereafter, as a general creditor, look only to the Company for the payment thereof.
Article
12.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 12.01 No Recourse.
No recourse under or upon any obligation,
covenant or agreement of this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof, shall
be had against any incorporator, stockholder, officer or director, past, present or future as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely corporate obligations, and that no such personal
liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers or directors as such,
of the Company or of any predecessor or successor corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom; and that any and all such personal liability of every name and nature, either at common law or in equity
or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, stockholder, officer
or director as such, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants
or agreements contained in this Indenture or in any of the Securities or implied therefrom, are hereby expressly waived and released
as a condition of, and as a consideration for, the execution of this Indenture and the issuance of such Securities.
Article
13.
MISCELLANEOUS PROVISIONS
Section 13.01 Effect on Successors
and Assigns.
All the covenants, stipulations, promises
and agreements in this Indenture made by or on behalf of the Company shall bind its successors and assigns, whether so expressed
or not.
Section 13.02 Actions by Successor.
Any act or proceeding by any provision of
this Indenture authorized or required to be done or performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the corresponding board, committee or officer of any corporation that shall at
the time be the lawful successor of the Company.
Section 13.03 Surrender of Company
Powers.
The Company by instrument in writing executed
by authority of its Board of Directors and delivered to the Trustee may surrender any of the powers reserved to the Company, and
thereupon such power so surrendered shall terminate both as to the Company and as to any successor corporation.
Section 13.04 Notices.
Except as otherwise expressly provided herein,
any notice, request or demand that by any provision of this Indenture is required or permitted to be given, made or served by the
Trustee, the Security Registrar, any paying or other agent under this Indenture or by the holders of Securities or by any other
Person pursuant to this Indenture to or on the Company may be given or served by being deposited in first class mail, postage prepaid,
addressed (until another address is filed in writing by the Company with the Trustee), as follows:
Any notice, election, request or demand
by the Company or any Securityholder or by any other Person pursuant to this Indenture to or upon the Trustee shall be deemed to
have been sufficiently given or made, for all purposes, if given or made in writing at the Corporate Trust Office of the Trustee.
Section 13.05 Governing Law; Jurisdiction;
Jury Trial Waiver.
This Indenture and each Security shall be
governed by, and construed in accordance with, the internal laws of the State of New York, except to the extent that the Trust
Indenture Act is applicable.
Each party hereto irrevocably and unconditionally
submits, for itself and its property, to the exclusive jurisdiction of any U.S. Federal or New York State court sitting in the
Borough of Manhattan, New York, New York in any action or proceeding arising out of or relating to this Indenture, or for recognition
or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law,
in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Indenture
shall affect any right that the parties hereto may otherwise have to bring any action or proceeding relating to this Indenture
against any party hereto or its properties in the courts of any jurisdiction.
EACH PARTY HERETO, AND EACH HOLDER OF A
SECURITY BY ACCEPTANCE THEREOF, HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS INDENTURE.
Section 13.06 Treatment of Securities
as Debt.
It is intended that the Securities will
be treated as indebtedness and not as equity for federal income tax purposes. The provisions of this Indenture shall be interpreted
to further this intention.
Section 13.07 Certificates and Opinions
as to Conditions Precedent.
(a) Upon any application or demand by the
Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish to the Trustee
an Officer’s Certificate stating that all conditions precedent provided for in this Indenture (other than the certificate
to be delivered pursuant to Section 13.12) relating to the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional certificate or opinion need be furnished.
(b) Each certificate or opinion provided
for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant in this Indenture (other
than the certificate to be delivered pursuant to Section 13.12 of this Indenture or Section 314(a)(1) of the Trust Indenture Act)
shall include (i) a statement that the Person making such certificate or opinion has read such covenant or condition; (ii) a brief
statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such
certificate or opinion are based; (iii) a statement that, in the opinion of such Person, he has made such examination or investigation
as is reasonably necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been
complied with; and (iv) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied
with.
Section 13.08 Payments on Business
Days.
Except as provided pursuant to Section 2.01
pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one or more indentures supplemental
to this Indenture, in any case where the date of maturity of interest or principal of any Security or the date of redemption of
any Security shall not be a Business Day, then payment of interest or principal (and premium, if any) may be made on the next succeeding
Business Day with the same force and effect as if made on the nominal date of maturity or redemption, and no interest shall accrue
on such payment for the period after such nominal date.
Section 13.09 Conflict with Trust Indenture
Act.
If and to the extent that any provision
of this Indenture limits, qualifies or conflicts with the duties imposed by Section 318(c) of the Trust Indenture Act, such imposed
duties shall control.
Section 13.10 Counterparts.
This Indenture may be executed in any number
of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
The exchange of copies of this Indenture and of signature pages by facsimile, pdf or other electronic transmission shall constitute
effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for
all purposes. Signatures of the parties hereto transmitted by facsimile, pdf or other electronic methods shall be deemed to be
their original signatures for all purposes.
Section 13.11 Severability.
In case any one or more of the provisions
contained in this Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of such
Securities, but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision
had never been contained herein or therein.
Section 13.12 Compliance Certificates.
The Company shall deliver to the Trustee,
within 120 days after the end of each fiscal year during which any Securities of any series were outstanding, an Officer’s
Certificate stating whether or not the signers know of any Event of Default that occurred during such fiscal year. Such Officer’s
Certificate shall contain a certification from the principal executive officer, principal financial officer or principal accounting
officer of the Company that a review has been conducted of the activities of the Company and the Company’s performance under
this Indenture and that the Company has complied with all conditions and covenants under this Indenture. For purposes of this Section
13.12, such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture.
If the officer of the Company signing such certificate has knowledge of such an Event of Default, the certificate shall describe
any such Event of Default and its status.
Section 13.13 U.S.A. Patriot Act.
The parties hereto acknowledge that in accordance
with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to help fight the funding
of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity
that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide
the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot
Act.
Section 13.14 Force Majeure.
In no event shall the Trustee, the Security
Registrar, any paying agent or any other agent under this Indenture be responsible or liable for any failure or delay in the performance
of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including without
limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes
or acts of God, epidemics or pandemics, and interruptions, loss or malfunctions or utilities, communications or computer (software
and hardware) services or the unavailability of the Federal Reserve Bank wire or telex system or other wire or communication system;
it being understood that the Trustee, the Security Registrar, any paying agent or any other agent under this Indenture shall use
reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable
under the circumstances.
Section 13.15 Table of Contents; Headings.
The table of contents and headings of the
articles and sections of this Indenture have been inserted for convenience of reference only, are not intended to be considered
a part hereof, and will not modify or restrict any of the terms or provisions hereof.
Section 13.16 E-Signatures.
Unless otherwise provided herein, the words
“execute”, “execution”, “signed”, and “signature” and words of similar import used
in or related to any document to be signed in connection with this Indenture or any of the transactions contemplated hereby (including
amendments, waivers, consents and other modifications) shall be deemed to include electronic signatures and the keeping of records
in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature
in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest extent and as provided for in any applicable
law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures
and Records Act, and any other similar state laws based on the Uniform Electronic Transactions Act, provided that, notwithstanding
anything herein to the contrary, the Trustee is under no obligation to agree to accept electronic signatures in any form or in
any format unless expressly agreed to by the Trustee pursuant to procedures approved by the Trustee.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed all as of the day and year first above written.
| |
CADIZ INC. |
| |
|
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
| |
|
|
| |
[NAME OF TRUSTEE], as Trustee |
| |
|
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
| CROSS-REFERENCE TABLE (1) |
|
|
| |
|
|
| Section of Trust Indenture Act of 1939, as Amended |
|
Section of Indenture |
| 310(a) |
|
7.09 |
| 310(b) |
|
7.08 |
| |
|
7.10 |
| 310(c) |
|
Inapplicable |
| 311(a) |
|
7.13 |
| 311(b) |
|
7.13 |
| 311(c) |
|
Inapplicable |
| 312(a) |
|
5.01 |
| |
|
5.02(a) |
| 312(b) |
|
5.02(c) |
| 312(c) |
|
5.02(c) |
| 313(a) |
|
5.04(a) |
| 313(b) |
|
5.04(b) |
| 313(c) |
|
5.04(a) |
| |
|
5.04(b) |
| 313(d) |
|
5.04(c) |
| 314(a) |
|
5.03 |
| |
|
13.12 |
| 314(b) |
|
Inapplicable |
| 314(c) |
|
13.07(a) |
| 314(d) |
|
Inapplicable |
| 314(e) |
|
13.07(b) |
| 314(f) |
|
Inapplicable |
| 315(a) |
|
7.01(a) |
| |
|
7.01(b) |
| 315(b) |
|
7.14 |
| 315(c) |
|
7.01 |
| 315(d) |
|
7.01(b) |
| 315(e) |
|
6.07 |
| 316(a) |
|
6.06 |
| |
|
8.04 |
| 316(b) |
|
6.04 |
| 316(c) |
|
8.01 |
| 317(a) |
|
6.02 |
| 317(b) |
|
4.03 |
| 318(a) |
|
13.09 |
| (1) | This Cross-Reference Table does not constitute part of
the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions. |
49
Exhibit 4.3
Cadiz Inc.,
Issuer
AND
[Name of Trustee],
Trustee
INDENTURE
Dated as of [ ]
Subordinated Debt Securities
TABLE OF
CONTENTS
| |
|
Page |
| |
|
|
| Article 1. DEFINITIONS |
1 |
| |
|
|
| Section 1.01 |
Definitions of Terms |
1 |
| |
|
|
| Article 2. ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
5 |
| |
|
|
| Section 2.01 |
Designation and Terms of Securities |
5 |
| Section 2.02 |
Form of Securities and Trustee’s Certificate |
8 |
| Section 2.03 |
Denominations: Provisions for Payment |
8 |
| Section 2.04 |
Execution and Authentications |
10 |
| Section 2.05 |
Registration of Transfer and Exchange |
10 |
| Section 2.06 |
Temporary Securities |
12 |
| Section 2.07 |
Mutilated, Destroyed, Lost or Stolen Securities |
12 |
| Section 2.08 |
Cancellation |
13 |
| Section 2.09 |
Benefits of Indenture |
13 |
| Section 2.10 |
Authenticating Agent |
14 |
| Section 2.11 |
Global Securities |
14 |
| Section 2.12 |
CUSIP Numbers |
15 |
| |
|
|
| Article 3. REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS |
15 |
| |
|
|
| Section 3.01 |
Redemption |
15 |
| Section 3.02 |
Notice of Redemption |
16 |
| Section 3.03 |
Payment Upon Redemption |
17 |
| Section 3.04 |
Sinking Fund |
17 |
| Section 3.05 |
Satisfaction of Sinking Fund Payments with Securities |
17 |
| Section 3.06 |
Redemption of Securities for Sinking Fund |
18 |
| |
|
|
| Article 4. COVENANTS |
18 |
| |
|
|
| Section 4.01 |
Payment of Principal, Premium and Interest |
18 |
| Section 4.02 |
Maintenance of Office or Agency |
19 |
| Section 4.03 |
Paying Agents |
19 |
| Section 4.04 |
Appointment to Fill Vacancy in Office of Trustee |
20 |
| |
|
|
| Article 5. SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
20 |
| |
|
|
| Section 5.01 |
Company to Furnish Trustee Names and Addresses of Securityholders |
20 |
| Section 5.02 |
Preservation of Information; Communications with Securityholders |
20 |
| Section 5.03 |
Reports by the Company |
21 |
| Section 5.04 |
Reports by the Trustee |
21 |
TABLE OF CONTENTS
(CONTINUED)
| Article 6. REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
22 |
| |
|
|
| Section 6.01 |
Events of Default |
22 |
| Section 6.02 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
24 |
| Section 6.03 |
Application of Moneys Collected |
25 |
| Section 6.04 |
Limitation on Suits |
25 |
| Section 6.05 |
Rights and Remedies Cumulative; Delay or Omission Not Waiver |
26 |
| Section 6.06 |
Control by Securityholders |
27 |
| Section 6.07 |
Undertaking to Pay Costs |
27 |
| |
|
|
| Article 7. CONCERNING THE TRUSTEE |
27 |
| |
|
|
| Section 7.01 |
Certain Duties and Responsibilities of Trustee |
27 |
| Section 7.02 |
Certain Rights of Trustee |
29 |
| Section 7.03 |
Trustee Not Responsible for Recitals or Issuance or Securities |
31 |
| Section 7.04 |
May Hold Securities |
31 |
| Section 7.05 |
Moneys Held in Trust |
31 |
| Section 7.06 |
Compensation and Reimbursement |
31 |
| Section 7.07 |
Reliance on Officer’s Certificate |
32 |
| Section 7.08 |
Disqualification; Conflicting Interests |
32 |
| Section 7.09 |
Corporate Trustee Required; Eligibility |
32 |
| Section 7.10 |
Resignation and Removal; Appointment of Successor |
33 |
| Section 7.11 |
Acceptance of Appointment by Successor |
34 |
| Section 7.12 |
Merger, Conversion, Consolidation or Succession to Business |
35 |
| Section 7.13 |
Preferential Collection of Claims Against the Company |
35 |
| Section 7.14 |
Notice of Default |
36 |
| |
|
|
| Article 8. CONCERNING THE SECURITYHOLDERS |
36 |
| |
|
|
| Section 8.01 |
Evidence of Action by Securityholders |
36 |
| Section 8.02 |
Proof of Execution by Securityholders |
37 |
| Section 8.03 |
Who May be Deemed Owners |
37 |
| Section 8.04 |
Certain Securities Owned by Company Disregarded |
37 |
| Section 8.05 |
Actions Binding on Future Securityholders |
38 |
| |
|
|
| Article 9. SUPPLEMENTAL INDENTURES |
38 |
| |
|
|
| Section 9.01 |
Supplemental Indentures Without the Consent of Securityholders |
38 |
| Section 9.02 |
Supplemental Indentures With Consent of Securityholders |
39 |
| Section 9.03 |
Effect of Supplemental Indentures |
40 |
| Section 9.04 |
Securities Affected by Supplemental Indentures |
40 |
| Section 9.05 |
Execution of Supplemental Indentures |
40 |
| |
|
|
| Article 10. SUCCESSOR ENTITY |
41 |
| |
|
|
| Section 10.01 |
Company May Consolidate, Etc |
41 |
| Section 10.02 |
Successor Entity Substituted |
41 |
TABLE OF CONTENTS
(CONTINUED)
| Article 11. SATISFACTION AND DISCHARGE |
42 |
| |
|
|
| Section 11.01 |
Satisfaction and Discharge of Indenture |
42 |
| Section 11.02 |
Discharge of Obligations |
42 |
| Section 11.03 |
Deposited Moneys to be Held in Trust |
43 |
| Section 11.04 |
Payment of Moneys Held by Paying Agents |
43 |
| Section 11.05 |
Repayment to Company |
43 |
| |
|
|
| Article 12. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
43 |
| |
|
|
| Section 12.01 |
No Recourse |
43 |
| |
|
|
| Article 13. MISCELLANEOUS PROVISIONS |
44 |
| |
|
|
| Section 13.01 |
Effect on Successors and Assigns |
44 |
| Section 13.02 |
Actions by Successor |
44 |
| Section 13.03 |
Surrender of Company Powers |
44 |
| Section 13.04 |
Notices |
44 |
| Section 13.05 |
Governing Law; Jurisdiction; Jury Trial Waiver |
44 |
| Section 13.06 |
Treatment of Securities as Debt |
45 |
| Section 13.07 |
Certificates and Opinions as to Conditions Precedent |
45 |
| Section 13.08 |
Payments on Business Days |
46 |
| Section 13.09 |
Conflict with Trust Indenture Act |
46 |
| Section 13.10 |
Counterparts |
46 |
| Section 13.11 |
Severability |
46 |
| Section 13.12 |
Compliance Certificates |
46 |
| Section 13.13 |
U.S.A. Patriot Act |
47 |
| Section 13.14 |
Force Majeure |
47 |
| Section 13.15 |
Table of Contents; Headings |
47 |
| Section 13.16 |
E-Signatures |
47 |
| |
|
|
| Article 14. SUBORDINATION OF SECURITIES |
47 |
| |
|
|
| Section 14.01 |
Subordination Terms |
47 |
INDENTURE
INDENTURE, dated as of [ ],
among CADIZ INC., a Delaware corporation (the “Company”), and [NAME OF TRUSTEE], as trustee (the “Trustee”):
WHEREAS, for its lawful corporate purposes, the Company
has duly authorized the execution and delivery of this Indenture (as defined below) to provide for the issuance of subordinated
debt securities (hereinafter referred to as the “Securities”), in an unlimited aggregate principal amount to be issued
from time to time in one or more series as in this Indenture provided, as registered Securities without coupons, to be authenticated
by the certificate of the Trustee;
WHEREAS, to provide the terms and conditions upon which
the Securities are to be authenticated, issued and delivered, the Company has duly authorized the execution of this Indenture;
and
WHEREAS, all things necessary to make this Indenture
a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and
the purchase of the Securities by the holders thereof, it is mutually covenanted and agreed as follows for the equal and ratable
benefit of the holders of Securities:
Article
1.
DEFINITIONS
Section 1.01 Definitions of Terms.
The terms defined in this Section (except as in this Indenture
or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires) for all purposes of
this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section and shall
include the plural as well as the singular. All other terms used in this Indenture that are defined in the Trust Indenture Act
(as defined below), or that are by reference in the Trust Indenture Act defined in the Securities Act (as defined below) (except
as herein or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires), shall have
the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of the execution
of this instrument.
“Authenticating Agent” means the Trustee or an authenticating
agent with respect to all or any of the series of Securities appointed by the Trustee pursuant to Section 2.10.
“Bankruptcy Law” means Title 11, U.S. Code, or any
similar federal or state law for the relief of debtors.
“Board of Directors” means the Board of Directors
(or the functional equivalent thereof) of the Company or any duly authorized committee of the Board of Directors.
“Board Resolution” means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors (or duly
authorized committee thereof) and to be in full force and effect on the date of such certification.
“Business Day” means, with respect to any series
of Securities, any day other than a day on which federal or state banking institutions in the Borough of Manhattan, the City of
New York, New York or in the city of the Corporate Trust Office of the Trustee, are authorized or obligated by law, executive order
or regulation to close.
“Commission” means the Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing
such duties at such time.
“Company” means CADIZ INC., a corporation
duly organized and existing under the laws of the State of Delaware, and, subject to the provisions of Article 10, shall also include
its successors and assigns.
“Corporate Trust Office” means the office of the
Trustee at which, at any particular time, its corporate trust business relating to this Indenture shall be administered, which
office at the date hereof is located at.
“Custodian” means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
“Defaulted Interest” has the meaning set forth in
Section 2.03.
“Depositary” means, with respect to Securities of
any series for which the Company shall determine that such Securities will be issued as a Global Security, The Depository Trust
Company, another clearing agency, or any successor registered as a clearing agency under the Exchange Act, or other applicable
statute or regulation, which, in each case, shall be designated by the Company pursuant to either Section 2.01 or Section 2.11.
“Event of Default” means, with respect to Securities
of a particular series, any event specified in Section 6.01, continued for the period of time, if any, therein designated.
“Exchange Act” means the United States Securities
and Exchange Act of 1934, as amended, and the rules and regulations promulgated by the Commission thereunder.
The term “given”, “mailed”, “notify”
or “sent” with respect to any notice to be given to a Securityholder pursuant to this Indenture, shall mean notice
(a) given to the Depositary (or its designee) pursuant to the standing instructions from the Depositary or its designee, including
by electronic mail in accordance with accepted practices or procedures at the Depositary (in the case of a Global Security) or
(b) mailed to such Securityholder by first class mail, postage prepaid, at its address as it appears on the Security Register (in
the case of a definitive Security). Notice so “given” shall be deemed to include any notice to be “mailed”
or “delivered,” as applicable, under this Indenture.
“Global Security” means a Security issued to evidence
all or a part of any series of Securities which is executed by the Company and authenticated and delivered by the Trustee to the
Depositary or pursuant to the Depositary’s instruction, all in accordance with the Indenture, which shall be registered in
the name of the Depositary or its nominee.
“Governmental Obligations” means securities that
are (a) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (b)
obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America,
the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America that,
in either case, are not callable or redeemable at the option of the issuer thereof at any time prior to the stated maturity of
the Securities, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to any
such Governmental Obligation or a specific payment of principal of or interest on any such Governmental Obligation held by such
custodian for the account of the holder of such depositary receipt; provided, however, that (except as required by
law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from
any amount received by the custodian in respect of the Governmental Obligation or the specific payment of principal of or interest
on the Governmental Obligation evidenced by such depositary receipt.
“herein”, “hereof” and “hereunder”,
and other words of similar import, refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
“Indenture” means this instrument as originally
executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into in
accordance with the terms hereof and shall include the terms of particular series of Securities established as contemplated by
Section 2.01.
“Interest Payment Date” means, when used with respect
to any installment of interest on a Security of a particular series, the date specified in such Security or in a Board Resolution
or in an indenture supplemental hereto with respect to such series as the fixed date on which an installment of interest with respect
to Securities of that series is due and payable.
“Officer” means, with respect to the Company, the
chairman of the Board of Directors, a chief executive officer, a president, a chief financial officer, a chief operating officer,
any executive vice president, any senior vice president, any vice president, the treasurer or any assistant treasurer, the controller
or any assistant controller or the secretary or any assistant secretary.
“Officer’s Certificate” means a certificate
signed by any Officer. Each such certificate shall include the statements provided for in Section 13.07, if and to the extent required
by the provisions thereof.
“Opinion of Counsel” means an opinion in writing
subject to customary and reasonable exceptions of legal counsel, who may be an employee of or counsel for the Company or other
counsel who is reasonably satisfactory to the Trustee, that is delivered to the Trustee in accordance with the terms hereof. Each
such opinion shall include the statements provided for in Section 13.07, if and to the extent required by the provisions thereof.
“Outstanding” means, when used with reference to
Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time, all Securities of that series
theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore canceled by the
Trustee or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that have previously been canceled;
(b) Securities or portions thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary amount
shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside
and segregated in trust by the Company (if the Company shall act as its own paying agent); provided, however, that
if such Securities or portions of such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall
have been given as provided in Article 3, or provision satisfactory to the Trustee shall have been made for giving such notice;
and (c) Securities in lieu of or in substitution for which other Securities shall have been authenticated and delivered pursuant
to the terms of Section 2.07.
“Person” means any individual, corporation, partnership,
joint venture, joint-stock company, limited liability company, association, trust, unincorporated organization, any other entity
or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Predecessor Security” of any particular Security
means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and,
for the purposes of this definition, any Security authenticated and delivered under Section 2.07 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“Responsible Officer” when used with respect to
the Trustee means any officer within the Corporate Trust Office of the Trustee (or any successor group of the Trustee) or any other
officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter relating to this Indenture, any other officer to whom such matter
is referred because of his or her knowledge of and familiarity with the particular subject and, in each case, who shall have direct
responsibility for the administration of this Indenture.
“Securities” has the meaning stated in the first
recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
“Securities Act” means the Securities Act of 1933,
as amended.
“Securityholder”, “holder of Securities”,
“registered holder”, or other similar term, means the Person or Persons in whose name or names a particular Security
is registered on the Security Register kept for that purpose in accordance with the terms of this Indenture.
“Security Register” and “Security Registrar”
shall have the meanings as set forth in Section 2.05.
“Subsidiary” means, with respect to any Person,
any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of
capital stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers, general partners or trustees thereof is at the time owned or controlled, directly
or indirectly, by (a) such Person; (b) such Person and one or more Subsidiaries of such Person; or (c) one or more Subsidiaries
of such Person.
“Trust Indenture Act” means the Trust Indenture
Act of 1939, as amended.
“Trustee” means [NAME OF TRUSTEE], and, subject
to the provisions of Article 7, shall also include its successors and assigns, and, if at any time there is more than one Person
acting in such capacity hereunder, “Trustee” shall mean each such Person. The term “Trustee” as used with
respect to a particular series of the Securities shall mean the trustee with respect to that series.
“U.S.A. Patriot Act” means the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, as amended and
signed into law October 26, 2001.
Article
2.
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES
Section 2.01 Designation and Terms
of Securities.
(a) The aggregate principal amount of Securities
that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series up
to the aggregate principal amount of Securities of that series from time to time authorized by or pursuant to a Board Resolution
or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities of any series, there shall
be established in or pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one or
more indentures supplemental hereto:
(1) the title of the Securities of the series
(which shall distinguish the Securities of that series from all other Securities);
(2) any limit upon the aggregate principal
amount of the Securities of that series that may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of that series);
(3) the maturity date or dates on which the
principal of the Securities of the series is payable;
(4) the form of the Securities of the series
including the form of the certificate of authentication for such series;
(5) the applicability of any guarantees;
(6) whether or not the Securities will be
secured or unsecured, and the terms of any secured debt;
(7) whether the Securities rank as senior
debt, senior subordinated debt, subordinated debt or any combination thereof, and the terms of any subordination;
(8) if the price (expressed as a percentage
of the aggregate principal amount thereof) at which such Securities will be issued is a price other than the principal amount thereof,
the portion of the principal amount thereof payable upon declaration of acceleration of the maturity thereof, or if applicable,
the portion of the principal amount of such Securities that is convertible into another security or the method by which any such
portion shall be determined;
(9) the interest rate or rates, which may
be fixed or variable, or the method for determining the rate or rates and the date interest will begin to accrue, the dates interest
will be payable and the regular record dates for interest payment dates or the method for determining such dates;
(10) the Company’s right, if any, to
defer the payment of interest and the maximum length of any such deferral period;
(11) if applicable, the date or dates after
which, or the period or periods during which, and the price or prices at which, the Company may at its option, redeem the series
of Securities pursuant to any optional or provisional redemption provisions and the terms of those redemption provisions;
(12) the date or dates, if any, on which,
and the price or prices at which the Company is obligated, pursuant to any mandatory sinking fund or analogous fund provisions
or otherwise, to redeem, or at the Securityholder’s option to purchase, the series of Securities and the currency or currency
unit in which the Securities are payable;
(13) the denominations in which the Securities
of the series shall be issuable, if other than minimum denominations of one thousand U.S. dollars ($1,000) or any integral multiple
in excess thereof;
(14) any and all terms, if applicable, relating
to any auction or remarketing of the Securities of that series and any security for the obligations of the Company with respect
to such Securities and any other terms which may be advisable in connection with the marketing of Securities of that series;
(15) whether the Securities of the series
shall be issued in whole or in part in the form of a Global Security or Securities; the terms and conditions, if any, upon which
such Global Security or Securities may be exchanged in whole or in part for other individual Securities; and the Depositary for
such Global Security or Securities;
(16) if applicable, the provisions relating
to conversion or exchange of any Securities of the series and the terms and conditions upon which such Securities will be so convertible
or exchangeable, including the conversion or exchange price, as applicable, or how it will be calculated and may be adjusted, any
mandatory or optional (at the Company’s option or the holders’ option) conversion or exchange features, the applicable
conversion or exchange period and the manner of settlement for any conversion or exchange, which may, without limitation, include
the payment of cash as well as the delivery of securities;
(17) if other than the full principal amount
thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration
of the maturity thereof pursuant to Section 6.01;
(18) additions to or changes in the covenants
applicable to the series of Securities being issued, including, among others, the consolidation, merger or sale covenant;
(19) additions to or changes in the Events
of Default with respect to the Securities and any change in the right of the Trustee or the Securityholders to declare the principal,
premium, if any, and interest, if any, with respect to such Securities to be due and payable;
(20) additions to or changes in or deletions
of the provisions relating to covenant defeasance and legal defeasance;
(21) additions to or changes in the provisions
relating to satisfaction and discharge of this Indenture;
(22) additions to or changes in the provisions
relating to the modification of this Indenture both with and without the consent of Securityholders of Securities issued under
this Indenture;
(23) the currency of payment of Securities
if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars;
(24) whether interest will be payable in cash
or additional Securities at the Company’s or the Securityholders’ option and the terms and conditions upon which the
election may be made;
(25) the terms and conditions, if any, upon
which the Company shall pay amounts in addition to the stated interest, premium, if any and principal amounts of the Securities
of the series to any Securityholder that is not a “United States person” for federal tax purposes;
(26) any restrictions on transfer, sale or
assignment of the Securities of the series;
(27) the subordination of terms of the Securities
of the series; and
(28) any other specific terms, preferences,
rights or limitations of, or restrictions on, the Securities, any other additions or changes in the provisions of this Indenture,
and any terms that may be required by us or advisable under applicable laws or regulations.
All Securities of any one series shall be
substantially identical except as may otherwise be provided in or pursuant to any such Board Resolution or in any indentures supplemental
hereto. If any of the terms of the series are established by action taken pursuant to a Board Resolution of the Company, a copy
of an appropriate record of such action shall be certified by the secretary or an assistant secretary of the Company and delivered
to the Trustee at or prior to the delivery of the Officer’s Certificate of the Company setting forth the terms of the series.
Securities of any particular series may
be issued at various times, with different dates on which the principal or any installment of principal is payable, with different
rates of interest, if any, or different methods by which rates of interest may be determined, with different dates on which such
interest may be payable and with different redemption dates.
Section 2.02 Form of Securities and
Trustee’s Certificate.
The Securities of any series and the Trustee’s
certificate of authentication to be borne by such Securities shall be substantially of the tenor and purport as set forth in one
or more indentures supplemental hereto or as provided in a Board Resolution, and set forth in an Officer’s Certificate, and
they may have such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed
or engraved thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as
may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any
securities exchange on which Securities of that series may be listed, or to conform to usage.
Section 2.03 Denominations: Provisions
for Payment.
Unless otherwise set forth in a Board Resolution
or one or more indentures supplemental hereto establishing the terms of any series of Securities pursuant to Section 2.01 hereof,
the Securities shall be issuable as registered Securities and in minimum denominations of one thousand U.S. dollars ($1,000) or
any integral multiple in excess thereof. The Securities of a particular series shall bear interest payable on the dates and at
the rate specified with respect to that series. Subject to Section 2.01(a)(23), the principal of and the interest on the Securities
of any series, as well as any premium thereon in case of redemption or repurchase thereof prior to maturity, and any cash amount
due upon conversion or exchange thereof, shall be payable in the coin or currency of the United States of America that at the time
is legal tender for public and private debt, at the office or agency of the Company maintained for that purpose. Each Security
shall be dated the date of its authentication. Interest on the Securities shall be computed on the basis of a 360-day year composed
of twelve 30-day months.
The interest installment on any Security
that is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities of that series shall
be paid to the Person in whose name said Security (or one or more Predecessor Securities) is registered at the close of business
on the regular record date for such interest installment. In the event that any Security of a particular series or portion thereof
is called for redemption and the redemption date is subsequent to a regular record date with respect to any Interest Payment Date
and prior to such Interest Payment Date, interest on such Security will be paid upon presentation and surrender of such Security
as provided in Section 3.03.
Any interest on any Security that is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date for Securities of the same series (herein called
“Defaulted Interest”) shall forthwith cease to be payable to the registered holder on the relevant regular record date
by virtue of having been such holder; and such Defaulted Interest shall be paid by the Company, at its election, as provided in
clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted
Interest on Securities to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered
in the Security Register at the close of business on a special record date for the payment of such Defaulted Interest, which shall
be fixed in the following manner: the Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each such Security and the date of the proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the
Company shall fix a special record date for the payment of such Defaulted Interest which shall not be more than 15 nor less than
10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Company shall promptly notify the Trustee of such special record date and, at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the special record date therefor to be sent, to each
Securityholder not less than 10 days prior to such special record date. Notice of the proposed payment of such Defaulted Interest
and the special record date therefor having been sent as aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names such Securities (or their respective Predecessor Securities) are registered in the Security Register on such special record
date.
(2) The Company may make payment of any Defaulted
Interest on any Securities in any other lawful manner not inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company
to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution
or one or more indentures supplemental hereto establishing the terms of any series of Securities pursuant to Section 2.01 hereof,
the term “regular record date” as used in this Section with respect to a series of Securities and any Interest Payment
Date for such series shall mean either the fifteenth day of the month immediately preceding the month in which an Interest Payment
Date established for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is the first day
of a month, or the first day of the month in which an Interest Payment Date established for such series pursuant to Section 2.01
hereof shall occur, if such Interest Payment Date is the fifteenth day of a month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this
Section, each Security of a series delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Security
of such series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security.
Section 2.04 Execution and Authentications.
The Securities shall be signed on behalf
of the Company by one of its Officers. Signatures may be in the form of a manual, facsimile or other electronic signature.
The Company may use the facsimile signature of any Person who
shall have been an Officer (at the time of execution), notwithstanding the fact that at the time the Securities shall be authenticated
and delivered or disposed of such Person shall have ceased to be such an officer of the Company. The Securities may contain such
notations, legends or endorsements required by law, stock exchange rule or usage. Each Security shall be dated the date of its
authentication by the Trustee.
A Security shall not be valid until authenticated
manually by an authorized signatory of the Trustee, or by an Authenticating Agent. Such signature shall be conclusive evidence
that the Security so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits
of this Indenture. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver
Securities of any series executed by the Company to the Trustee for authentication, together with a written order of the Company
for the authentication and delivery of such Securities, signed by an Officer, and the Trustee in accordance with such written order
shall authenticate and deliver such Securities.
Upon the Company’s delivery of any
such authentication order to the Trustee at any time after the initial issuance of Securities under this Indenture, the Trustee
shall be provided with, and (subject to Sections 315(a) through 315(d) of the Trust Indenture Act) shall be fully protected in
relying upon, (1) an Opinion of Counsel or reliance letter and (2) an Officer’s Certificate stating that all conditions precedent
to the execution, authentication and delivery of such Securities are in conformity with the provisions of this Indenture.
The Trustee shall not be required to authenticate
such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee.
Section 2.05 Registration of Transfer
and Exchange.
(a) Securities of any series may be exchanged
upon presentation thereof at the office or agency of the Company designated for such purpose, for other Securities of such series
of authorized denominations, and for a like aggregate principal amount, upon payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, all as provided in this Section. In respect of any Securities so surrendered for exchange,
the Company shall execute, the Trustee shall authenticate and such office or agency shall deliver in exchange therefor the Security
or Securities of the same series that the Securityholder making the exchange shall be entitled to receive, bearing numbers not
contemporaneously outstanding.
(b) The Company shall keep, or cause to
be kept, at its office or agency designated for such purpose a register or registers (herein referred to as the “Security
Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall register the Securities
and the transfers of Securities as in this Article provided and which at all reasonable times shall be open for inspection by the
Trustee. The registrar for the purpose of registering Securities and transfer of Securities as herein provided shall be appointed
as authorized by Board Resolution or Supplemental Indenture (the “Security Registrar”).
Upon surrender for transfer of any Security at the office or
agency of the Company designated for such purpose, the Company shall execute, the Trustee shall authenticate and such office or
agency shall deliver in the name of the transferee or transferees a new Security or Securities of the same series as the Security
presented for a like aggregate principal amount. The Company initially appoints the Trustee as initial Security Registrar for each
series of Securities.
All Securities presented or surrendered
for exchange or registration of transfer, as provided in this Section, shall be accompanied (if so required by the Company or the
Security Registrar) by a written instrument or instruments of transfer, in form satisfactory to the Company or the Security Registrar,
duly executed by the registered holder or by such holder’s duly authorized attorney in writing.
(c) Except as provided pursuant to Section
2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one or more indentures
supplemental to this Indenture, no service charge shall be made for any exchange or registration of transfer of Securities, or
issue of new Securities in case of partial redemption of any series or repurchase, conversion or exchange of less than the entire
principal amount of a Security, but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge in relation thereto, other than exchanges pursuant to Section 2.06, Section 3.03(b) and Section 9.04 not involving any transfer.
(d) The Company and the Security Registrar
shall not be required (i) to issue, exchange or register the transfer of any Securities during a period beginning at the opening
of business 15 days before the day of the sending of a notice of redemption of less than all the Outstanding Securities of the
same series and ending at the close of business on the day of such sending, nor (ii) to register the transfer of or exchange any
Securities of any series or portions thereof called for redemption or surrendered for repurchase, but not validly withdrawn, other
than the unredeemed portion of any such Securities being redeemed in part or not surrendered for repurchase, as the case may be.
The provisions of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.
The Trustee shall have no obligation or
duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under
applicable law with respect to any transfer of any interest in any Security (including any transfers between or among Depositary
participants or beneficial owners of interests in any Global Security) other than to require delivery of such certificates and
other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this
Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
Neither the Trustee nor any Agent shall
have any responsibility or liability for any actions taken or not taken by the Depositary. The Trustee shall have no responsibility
or obligation to any Securityholder that is a member of (or a participant in) the Depositary or any other Person with respect to
the accuracy of the records of the Depositary (or its nominee) or of any participant or member thereof, with respect to any ownership
interest in the Securities or with respect to the delivery of any notice (including any notice of redemption) or the payment of
any amount or delivery of any Securities (or other security or property) under or with respect to the Securities. The Trustee may
rely (and shall be fully protected in relying) upon information furnished by the Depositary with respect to its members, participants
and any beneficial owners in the Securities.
Section 2.06 Temporary Securities.
Pending the preparation of definitive Securities
of any series, the Company may execute, and the Trustee shall authenticate and deliver, temporary Securities (printed, lithographed
or typewritten) of any authorized denomination. Such temporary Securities shall be substantially in the form of the definitive
Securities in lieu of which they are issued, but with such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Company. Every temporary Security of any series shall be executed by the Company and
be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive
Securities of such series. Without unnecessary delay the Company will execute and will furnish definitive Securities of such series
and thereupon any or all temporary Securities of such series may be surrendered in exchange therefor (without charge to the Securityholders),
at the office or agency of the Company designated for the purpose, and the Trustee shall authenticate and such office or agency
shall deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of such series,
unless the Company advises the Trustee to the effect that definitive Securities need not be executed and furnished until further
notice from the Company. Until so exchanged, the temporary Securities of such series shall be entitled to the same benefits under
this Indenture as definitive Securities of such series authenticated and delivered hereunder.
Section 2.07 Mutilated, Destroyed,
Lost or Stolen Securities.
In case any temporary or definitive Security
shall become mutilated or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence) shall execute, and
upon the Company’s written request the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the
same series, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security, or in
lieu of and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security
shall furnish to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company and the Trustee evidence to their
satisfaction of the destruction, loss or theft of the applicant’s Security and of the ownership thereof. The Trustee may
authenticate any such substituted Security and deliver the same upon the written request or authorization of any officer of the
Company. Upon the issuance of any substituted Security, the Company may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith.
In case any Security that has matured or
is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Security,
pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Security) if the applicant
for such payment shall furnish to the Company and the Trustee such security or indemnity as they may require to save them harmless,
and, in case of destruction, loss or theft, evidence to the satisfaction of the Company and the Trustee of the destruction, loss
or theft of such Security and of the ownership thereof.
Every replacement Security issued pursuant
to the provisions of this Section shall constitute an additional contractual obligation of the Company whether or not the mutilated,
destroyed, lost or stolen Security shall be found at any time, or be enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Securities of the same series duly issued hereunder. All Securities
shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities, and shall preclude (to the extent lawful) any and all other rights
or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or
payment of negotiable instruments or other securities without their surrender.
Section 2.08 Cancellation.
All Securities surrendered for the purpose
of payment, redemption, repurchase, exchange, registration of transfer or conversion shall, if surrendered to the Company or any
paying agent (or any other applicable agent), be delivered to the Trustee for cancellation, or, if surrendered to the Trustee,
shall be cancelled by it, and no Securities shall be issued in lieu thereof except as expressly required or permitted by any of
the provisions of this Indenture. On request of the Company, the Trustee shall deliver to the Company certification of the cancellation.
The Trustee may dispose of cancelled Securities in accordance with its standard procedures and the record retention requirements
of the Securities Act. If the Company shall otherwise acquire any of the Securities, however, such acquisition shall not operate
as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered to the
Trustee for cancellation.
Section 2.09 Benefits of Indenture.
Nothing in this Indenture or in the Securities,
express or implied, shall give or be construed to give to any Person, other than the parties hereto and the holders of the Securities
(and, with respect to the provisions of Article 14, the holders of any indebtedness of the Company to which the Securities of any
series are subordinated) any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant,
condition or provision herein contained; all such covenants, conditions and provisions being for the sole benefit of the parties
hereto and of the holders of the Securities (and, with respect to the provisions of Article 14, the holders of any indebtedness
of the Company to which the Securities of any series are subordinated).
Section 2.10 Authenticating Agent.
So long as any of the Securities of any
series remain Outstanding there may be an Authenticating Agent for any or all such series of Securities which the Trustee shall
have the right to appoint. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon exchange, transfer or partial redemption, repurchase or conversion thereof, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. All references in this Indenture to the authentication of Securities by the Trustee shall be deemed to include
authentication by an Authenticating Agent for such series. Each Authenticating Agent shall be acceptable to the Company and shall
be a corporation that has a combined capital and surplus, as most recently reported or determined by it, sufficient under the laws
of any jurisdiction under which it is organized or in which it is doing business to conduct a trust business, and that is otherwise
authorized under such laws to conduct such business and is subject to supervision or examination by federal or state authorities.
If at any time any Authenticating Agent shall cease to be eligible in accordance with these provisions, it shall resign immediately.
Any Authenticating Agent may at any time
resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time (and upon request
by the Company shall) terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating
Agent and to the Company. Upon resignation, termination or cessation of eligibility of any Authenticating Agent, the Trustee may
appoint an eligible successor Authenticating Agent acceptable to the Company. Any successor Authenticating Agent, upon acceptance
of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder as if originally
named as an Authenticating Agent pursuant hereto.
Section 2.11 Global Securities.
(a) If the Company shall establish pursuant
to Section 2.01 that the Securities of a particular series are to be issued as a Global Security, then the Company shall execute
and the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security that (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of, all of the Outstanding Securities of such series,
(ii) shall be registered in the name of the Depositary or its nominee, (iii) shall be delivered by the Trustee to the Depositary
or pursuant to the Depositary’s instruction (or if the Depositary names the Trustee as its custodian, retained by the Trustee),
and (iv) shall bear a legend substantially to the following effect: “Except as otherwise provided in Section 2.11 of this
Indenture, this Security may be transferred, in whole but not in part, only to another nominee of the Depositary or to a successor
Depositary or to a nominee of such successor Depositary.”
(b) Notwithstanding the provisions of Section
2.05, the Global Security of a series may be transferred, in whole but not in part and in the manner provided in Section 2.05,
only to another nominee of the Depositary for such series, or to a successor Depositary for such series selected or approved by
the Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a
series of the Securities notifies the Company that it is unwilling or unable to continue as Depositary for such series or if at
any time the Depositary for such series shall no longer be registered or in good standing under the Exchange Act, or other applicable
statute or regulation, and a successor Depositary for such series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, as the case may be, or if an Event of Default has occurred and is continuing
and the Company has received a request from the Depositary or from the Trustee, this Section 2.11 shall no longer be applicable
to the Securities of such series and the Company will execute, and subject to Section 2.04, the Trustee will authenticate and deliver
the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security of such series in exchange for such Global Security. In addition, the
Company may at any time determine that the Securities of any series shall no longer be represented by a Global Security and that
the provisions of this Section 2.11 shall no longer apply to the Securities of such series. In such event the Company will
execute and, subject to Section 2.04, the Trustee, upon receipt of an Officer’s Certificate evidencing such determination
by the Company, will authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal amount of the Global Security of such series in exchange
for such Global Security. Upon the exchange of the Global Security for such Securities in definitive registered form without coupons,
in authorized denominations, the Global Security shall be canceled by the Trustee. Such Securities in definitive registered form
issued in exchange for the Global Security pursuant to this Section 2.11(c) shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct
the Trustee. The Trustee shall deliver such Securities to the Depositary for delivery to the Persons in whose names such Securities
are so registered.
Section 2.12 CUSIP Numbers.
The Company in issuing the Securities may
use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices
of redemption as a convenience to Securityholders; provided that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other elements of identification printed on the Securities, and any such redemption shall not
be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee of any change in the “CUSIP”
numbers.
Article
3.
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
Section 3.01 Redemption.
The Company may redeem the Securities of
any series issued hereunder on and after the dates and in accordance with the terms established for such series pursuant to Section
2.01 hereof.
Section 3.02 Notice of Redemption.
(a) In case the Company shall desire to
exercise such right to redeem all or, as the case may be, a portion of the Securities of any series in accordance with any right
the Company reserved for itself to do so pursuant to Section 2.01 hereof, the Company shall, or shall cause the Trustee to, give
notice of such redemption to holders of the Securities of such series to be redeemed by mailing, first class postage prepaid (or
with regard to any Global Security held in book entry form, by electronic mail in accordance with the applicable procedures of
the Depositary), a notice of such redemption not less than 30 days and not more than 90 days before the date fixed for redemption
of that series to such Securityholders, unless a shorter period is specified in the Securities to be redeemed. Any notice that
is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the registered holder
receives the notice. In any case, failure duly to give such notice to the holder of any Security of any series designated for redemption
in whole or in part, or any defect in the notice, shall not affect the validity of the proceedings for the redemption of any other
Securities of such series or any other series. In the case of any redemption of Securities prior to the expiration of any restriction
on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee
with an Officer’s Certificate evidencing compliance with any such restriction.
Each such notice of redemption shall identify
the Securities to be redeemed (including CUSIP numbers, if any), specify the date fixed for redemption and the redemption price
at which Securities of that series are to be redeemed, and shall state that payment of the redemption price of such Securities
to be redeemed will be made at the office or agency of the Company, upon presentation and surrender of such Securities, that interest
accrued to the date fixed for redemption will be paid as specified in said notice, that from and after said date interest will
cease to accrue and that the redemption is from a sinking fund, if such is the case. If less than all the Securities of a series
are to be redeemed, the notice to the holders of Securities of that series to be redeemed in part shall specify the particular
Securities to be so redeemed.
In case any Security is to be redeemed in
part only, the notice that relates to such Security shall state the portion of the principal amount thereof to be redeemed, and
shall state that on and after the redemption date, upon surrender of such Security, a new Security or Securities of such series
in principal amount equal to the unredeemed portion thereof will be issued.
(b) If less than all the Securities of a
series are to be redeemed, the Company shall give the Trustee at least 45 days’ notice (unless a shorter notice shall be
satisfactory to the Trustee) in advance of the date fixed for redemption as to the aggregate principal amount of Securities of
the series to be redeemed, and thereupon the Securities to be redeemed shall be selected, by lot, on a pro rata basis, or in such
other manner as the Company shall deem appropriate and fair in its discretion, and in the case of Global Securities, in accordance
with the applicable rules and procedures of the Depositary, and that may provide for the selection of a portion or portions (equal
to a minimum of one thousand U.S. dollars ($1,000) or any integral multiple in excess thereof) of the principal amount of such
Securities of a denomination larger than $1,000, the Securities to be redeemed and shall thereafter promptly notify the Company
in writing of the numbers of the Securities to be redeemed, in whole or in part. The Company may, if and whenever it shall so elect,
by delivery of instructions signed on its behalf by an Officer, instruct the Trustee or any paying agent to call all or any part
of the Securities of a particular series for redemption and to give notice of redemption in the manner set forth in this Section,
such notice to be in the name of the Company or its own name as the Trustee or such paying agent may deem advisable. In any case
in which notice of redemption is to be given by the Trustee or any such paying agent, the Company shall deliver or cause to be
delivered to, or permit to remain with, the Trustee or such paying agent, as the case may be, such Security Register, transfer
books or other records, or suitable copies or extracts therefrom, sufficient to enable the Trustee or such paying agent to give
any notice by mail that may be required under the provisions of this Section.
Section 3.03 Payment Upon Redemption.
(a) If the giving of notice of redemption
shall have been completed as above provided, the Securities or portions of Securities of the series to be redeemed specified in
such notice shall become due and payable on the date and at the place stated in such notice at the applicable redemption price,
together with interest accrued to, but excluding, the date fixed for redemption and interest on such Securities or portions of
Securities shall cease to accrue on and after the date fixed for redemption, unless the Company shall default in the payment of
such redemption price and accrued interest with respect to any such Security or portion thereof. On presentation and surrender
of such Securities on or after the date fixed for redemption at the place of payment specified in the notice, said Securities shall
be paid and redeemed at the applicable redemption price for such series, together with interest accrued thereon to, but excluding,
the date fixed for redemption (but if the date fixed for redemption is an Interest Payment Date, the interest installment payable
on such date shall be payable to the registered holder at the close of business on the applicable record date pursuant to Section
2.03).
(b) Upon presentation of any Security of
such series that is to be redeemed in part only, the Company shall execute and the Trustee shall authenticate and the office or
agency where the Security is presented shall deliver to the Securityholder thereof, at the expense of the Company, a new Security
of the same series of authorized denominations in principal amount equal to the unredeemed portion of the Security so presented.
Section 3.04 Sinking Fund.
The provisions of Section 3.04, Section
3.05 and Section 3.06 shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise
specified as contemplated by Section 2.01 for Securities of such series.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,”
and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as
an “optional sinking fund payment”. If provided for by the terms of Securities of any series, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 3.05. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of Securities of such series.
Section 3.05 Satisfaction of Sinking
Fund Payments with Securities.
The Company (i) may deliver Outstanding
Securities of a series and (ii) may apply as a credit Securities of a series that have been redeemed either at the election of
the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant
to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series,
provided that such Securities have not been previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the redemption price specified in such Securities for redemption through operation of the sinking fund
and the amount of such sinking fund payment shall be reduced accordingly.
Section 3.06 Redemption of Securities
for Sinking Fund.
Not less than 45 days prior to each sinking
fund payment date for any series of Securities (unless a shorter period shall be satisfactory to the Trustee), the Company will
deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of the series, the portion thereof, if any, that is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 3.05 and the basis for such credit and will, together with such Officer’s Certificate,
deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date the
Securities to be redeemed upon such sinking fund payment date shall be selected in the manner specified in Section 3.02 and the
Company shall cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner
provided in Section 3.02. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Section 3.03.
Article
4.
COVENANTS
Section 4.01 Payment of Principal,
Premium and Interest.
The Company will duly and punctually pay
or cause to be paid the principal of (and premium, if any) and interest on the Securities of that series at the time and place
and in the manner provided herein and established with respect to such Securities. Payments of principal on the Securities may
be made at the time provided herein and established with respect to such Securities by U.S. dollar check drawn on and mailed to
the address of the Securityholder entitled thereto as such address shall appear in the Security Register, or U.S. dollar wire transfer
to, a U.S. dollar account if such Securityholder shall have furnished wire instructions to the Trustee no later than 15 days prior
to the relevant payment date. Payments of interest on the Securities may be made at the time provided herein and established with
respect to such Securities by U.S. dollar check mailed to the address of the Securityholder entitled thereto as such address shall
appear in the Security Register, or U.S. dollar wire transfer to, a U.S. dollar account if such Securityholder shall have furnished
wire instructions in writing to the Security Registrar and the Trustee no later than 15 days prior to the relevant payment
date.
Section 4.02 Maintenance of Office
or Agency.
So long as any series of the Securities
remain Outstanding, the Company agrees to maintain an office or agency with respect to each such series and at such other location
or locations as may be designated as provided in this Section 4.02, where (i) Securities of that series may be presented for payment,
(ii) Securities of that series may be presented as herein above authorized for registration of transfer and exchange, and (iii)
notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be given or served,
such designation to continue with respect to such office or agency until the Company shall, by written notice signed by any officer
authorized to sign an Officer’s Certificate and delivered to the Trustee, designate some other office or agency for such
purposes or any of them. If at any time the Company shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, notices and
demands. The Company initially appoints the Corporate Trust Office of the Trustee as its paying agent with respect to the Securities;
provided that, no office of the Trustee shall be an office or agency for the purpose of service of legal process against
the Company.
Section 4.03 Paying Agents.
(a) If the Company shall appoint one or
more paying agents for all or any series of the Securities, other than the Trustee, the Company will cause each such paying agent
to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions
of this Section:
(1) that it will hold all sums held by it
as such agent for the payment of the principal of (and premium, if any) or interest on the Securities of that series (whether such
sums have been paid to it by the Company or by any other obligor of such Securities) in trust for the benefit of the Persons entitled
thereto;
(2) that it will give the Trustee notice of
any failure by the Company (or by any other obligor of such Securities) to make any payment of the principal of (and premium, if
any) or interest on the Securities of that series when the same shall be due and payable;
(3) that it will, at any time during the continuance
of any failure referred to in the preceding paragraph (a)(2) above, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such paying agent; and
(4) that it will perform all other duties
of paying agent as set forth in this Indenture.
(b) If the Company shall act as its own
paying agent with respect to any series of the Securities, it will on or before each due date of the principal of (and premium,
if any) or interest on Securities of that series, set aside, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay such principal (and premium, if any) or interest so becoming due on Securities of that series until
such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of such
action, or any failure (by it or any other obligor on such Securities) to take such action. Whenever the Company shall have one
or more paying agents for any series of Securities, it will, prior to each due date of the principal of (and premium, if any) or
interest on any Securities of that series, deposit with the paying agent a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium
or interest, and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of this action or failure
so to act.
(c) Notwithstanding anything in this Section
to the contrary, (i) the agreement to hold sums in trust as provided in this Section is subject to the provisions of Section 11.05,
and (ii) the Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any
other purpose, pay, or direct any paying agent to pay, to the Trustee all sums held in trust by the Company or such paying agent,
such sums to be held by the Trustee upon the same terms and conditions as those upon which such sums were held by the Company or
such paying agent; and, upon such payment by the Company or any paying agent to the Trustee, the Company or such paying agent shall
be released from all further liability with respect to such money.
Section 4.04 Appointment to Fill Vacancy
in Office of Trustee.
The Company, whenever necessary to avoid
or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall
at all times be a Trustee hereunder.
Article
5.
SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 5.01 Company to Furnish Trustee
Names and Addresses of Securityholders.
The Company will furnish or cause to be
furnished to the Trustee (a) within 15 days after each regular record date (as defined in Section 2.03) a list, in such form as
the Trustee may reasonably require, of the names and addresses of the holders of each series of Securities as of such regular record
date, provided that the Company shall not be obligated to furnish or cause to furnish such list at any time that the list
shall not differ in any respect from the most recent list furnished to the Trustee by the Company and (b) at such other times as
the Trustee may request in writing within 30 days after the receipt by the Company of any such request, a list of similar form
and content as of a date not more than 15 days prior to the time such list is furnished; provided, however, that,
in either case, no such list need be furnished for any series for which the Trustee shall be the Security Registrar.
Section 5.02 Preservation of Information;
Communications with Securityholders.
(a) The Trustee shall preserve, in as current
a form as is reasonably practicable, all information as to the names and addresses of the holders of Securities contained in the
most recent list furnished to it as provided in Section 5.01 and as to the names and addresses of holders of Securities received
by the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b) The Trustee may destroy any list furnished
to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided
in Section 312(b) of the Trust Indenture Act with other Securityholders with respect to their rights under this Indenture or under
the Securities, and, in connection with any such communications, the Trustee shall satisfy its obligations under Section 312(b)
of the Trust Indenture Act in accordance with the provisions of Section 312(b) of the Trust Indenture Act.
Section 5.03 Reports by the Company.
(a) The Company will at all times comply
with Section 314(a) of the Trust Indenture Act. The Company covenants and agrees to provide (which delivery may be via electronic
mail) to the Trustee within 30 days, after the Company files the same with the Commission, copies of the annual reports and of
the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) that the Company is required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; provided, however, the Company shall not be required to deliver to the Trustee
any correspondence filed with the Commission or any materials for which the Company has sought and received confidential treatment
by the Commission; and provided further, that so long as such filings by the Company are available on the Commission’s
Electronic Data Gathering, Analysis and Retrieval System (EDGAR), or any successor system, such filings shall be deemed to have
been delivered to the Trustee for purposes hereof without any further action required by the Company. For the avoidance of doubt,
a failure by the Company to file annual reports, information and other reports with the Commission within the time period prescribed
thereof by the Commission shall not be deemed a breach of this Section 5.03.
(b) Delivery of reports, information and
documents to the Trustee under Section 5.03 is for informational purposes only and the information and the Trustee’s receipt
of the foregoing shall not constitute actual or constructive notice of any information contained therein, or determinable from
information contained therein including the Company’s compliance with any of their covenants thereunder (as to which the
Trustee is entitled to rely exclusively on an Officer’s Certificate). The Trustee is under no duty to examine any such reports,
information or documents delivered to the Trustee or filed with the Commission via EDGAR to ensure compliance with the provision
of this Indenture or to ascertain the correctness or otherwise of the information or the statements contained therein. The Trustee
shall have no responsibility or duty whatsoever to ascertain or determine whether the above referenced filings with the Commission
on EDGAR (or any successor system) has occurred.
Section 5.04 Reports by the Trustee.
(a) If required by Section 313(a) of the
Trust Indenture Act, the Trustee, within sixty (60) days after each May 1, shall send to the Securityholders a brief report dated
as of such May 1, which complies with Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section
313(b) and 313(c) of the Trust Indenture Act.
(c) A copy of each such report shall, at
the time of such transmission to Securityholders, be filed by the Trustee with the Company, with each securities exchange upon
which any Securities are listed (if so listed) and also with the Commission. The Company agrees to notify the Trustee when any
Securities become listed on any securities exchange.
Article
6.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 6.01 Events of Default.
(a) Whenever used herein with respect to
Securities of a particular series, “Event of Default” means any one or more of the following events that has occurred
and is continuing:
(1) the Company defaults in the payment of
any installment of interest upon any of the Securities of that series, as and when the same shall become due and payable, and such
default continues for a period of 90 days; provided, however, that a valid extension of an interest payment period
by the Company in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment
of interest for this purpose;
(2) the Company defaults in the payment of
the principal of (or premium, if any, on) any of the Securities of that series as and when the same shall become due and payable
whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by any sinking or analogous fund
established with respect to that series; provided, however, that a valid extension of the maturity of such Securities
in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment of principal or
premium, if any;
(3) the Company fails to observe or perform
any other of its covenants or agreements with respect to that series contained in this Indenture or otherwise established with
respect to that series of Securities pursuant to Section 2.01 hereof (other than a covenant or agreement that has been expressly
included in this Indenture solely for the benefit of one or more series of Securities other than such series) for a period of 90
days after the date on which written notice of such failure, requiring the same to be remedied and stating that such notice is
a “Notice of Default” hereunder, shall have been given to the Company by the Trustee, by registered or certified mail,
or to the Company and the Trustee by the holders of at least 25% in principal amount of the Securities of that series at the time
Outstanding;
(4) the Company pursuant to or within the
meaning of any Bankruptcy Law (i) commences a voluntary case, (ii) consents to the entry of an order for relief against it in an
involuntary case, (iii) consents to the appointment of a Custodian of it or for all or substantially all of its property or (iv)
makes a general assignment for the benefit of its creditors; or
(5) a court of competent jurisdiction enters
an order under any Bankruptcy Law that (i) is for relief against the Company in an involuntary case, (ii) appoints a Custodian
of the Company for all or substantially all of its property or (iii) orders the liquidation of the Company, and the order or decree
remains unstayed and in effect for 90 days.
(b) In each and every such case (other than
an Event of Default specified in clause (a)(4) or clause (a)(5) above), unless the principal of all the Securities of that series
shall have already become due and payable, either the Trustee or the holders of not less than 25% in aggregate principal amount
of the Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by
such Securityholders), may declare the principal of (and premium, if any, on) and accrued and unpaid interest, if any, on all the
Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately
due and payable. If an Event of Default specified in clause (a)(4) or clause (a)(5) above occurs, the principal of and accrued
and unpaid interest on all the Securities of that series shall automatically be immediately due and payable without any declaration
or other act on the part of the Trustee or the holders of the Securities.
(c) At any time after the principal of (and
premium, if any, on) and accrued and unpaid interest on the Securities of that series shall have been so declared due and payable,
and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided,
the holders of a majority in aggregate principal amount of the Securities of that series then Outstanding hereunder, by written
notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (i) the Company has paid
or deposited with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of that series
and the principal of (and premium, if any, on) any and all Securities of that series that shall have become due otherwise than
by acceleration (with interest upon such principal and premium, if any, and, to the extent that such payment is enforceable under
applicable law, upon overdue installments of interest, at the rate per annum expressed in the Securities of that series to the
date of such payment or deposit) and the amount payable to the Trustee under Section 7.06, and (ii) any and all Events of Default
under the Indenture with respect to such series, other than the nonpayment of principal on (and premium, if any, on) and accrued
and unpaid interest on Securities of that series that shall not have become due by their terms, shall have been remedied or waived
as provided in Section 6.06.
No such rescission and annulment shall extend
to or shall affect any subsequent default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded
to enforce any right with respect to Securities of that series under this Indenture and such proceedings shall have been discontinued
or abandoned because of such rescission or annulment or for any other reason or shall have been determined adversely to the Trustee,
then and in every such case, subject to any determination in such proceedings, the Company and the Trustee shall be restored respectively
to their former positions and rights hereunder, and all rights, remedies and powers of the Company and the Trustee shall continue
as though no such proceedings had been taken.
Section 6.02 Collection of Indebtedness
and Suits for Enforcement by Trustee.
(a) The Company covenants that (i) in case
it shall default in the payment of any installment of interest on any of the Securities of a series, or in any payment required
by any sinking or analogous fund established with respect to that series as and when the same shall have become due and payable,
and such default shall have continued for a period of 90 days, or (ii) in case it shall default in the payment of the principal
of (or premium, if any, on) any of the Securities of a series when the same shall have become due and payable, whether upon maturity
of the Securities of a series or upon redemption or upon declaration or otherwise then, upon demand of the Trustee, the Company
will pay to the Trustee, for the benefit of the holders of the Securities of that series, the whole amount that then shall have
been become due and payable on all such Securities for principal (and premium, if any) or interest, or both, as the case may be,
with interest upon the overdue principal (and premium, if any) and (to the extent that payment of such interest is enforceable
under applicable law) upon overdue installments of interest at the rate per annum expressed in the Securities of that series; and,
in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, and the amount payable
to the Trustee under Section 7.06.
(b) If the Company shall fail to pay such
amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered
to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute
any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Company
or other obligor upon the Securities of that series and collect the moneys adjudged or decreed to be payable in the manner provided
by law or equity out of the property of the Company or other obligor upon the Securities of that series, wherever situated.
(c) In case of any receivership, insolvency,
liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial proceedings affecting the Company,
or its creditors or property, the Trustee shall have power to intervene in such proceedings and take any action therein that may
be permitted by the court and shall (except as may be otherwise provided by law) be entitled to file such proofs of claim and other
papers and documents as may be necessary or advisable in order to have the claims of the Trustee and of the holders of Securities
of such series allowed for the entire amount due and payable by the Company under the Indenture at the date of institution of such
proceedings and for any additional amount that may become due and payable by the Company after such date, and to collect and receive
any moneys or other property payable or deliverable on any such claim, and to distribute the same after the deduction of the amount
payable to the Trustee under Section 7.06; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized
by each of the holders of Securities of such series to make such payments to the Trustee, and, in the event that the Trustee shall
consent to the making of such payments directly to such Securityholders, to pay to the Trustee any amount due it under Section
7.06.
(d) All rights of action and of asserting
claims under this Indenture, or under any of the terms established with respect to Securities of that series, may be enforced by
the Trustee without the possession of any of such Securities, or the production thereof at any trial or other proceeding relative
thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for payment to the Trustee of any amounts due under Section 7.06, be for the
ratable benefit of the holders of the Securities of such series.
In case of an Event of Default hereunder,
the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity
or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in the Indenture or
in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee
by this Indenture or by law.
Nothing contained herein shall be deemed
to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities of that series or the rights of any Securityholder thereof or to
authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
Section 6.03 Application of Moneys
Collected.
(a) Any moneys or property collected by
the Trustee pursuant to this Article with respect to a particular series of Securities shall be applied in the following order,
at the date or dates fixed by the Trustee and, in case of the distribution of such moneys or property on account of principal (or
premium, if any) or interest, upon presentation of the Securities of that series, and notation thereon of the payment, if only
partially paid, and upon surrender thereof if fully paid:
(1) FIRST: To the payment of costs and expenses
of collection and of all amounts payable to the Trustee under this Indenture;
(2) SECOND: To the payment of of all indebtedness
of the Company to which such series of Securities is subordinated to the extent required by Article 14;
(3) THIRD: To the payment of the amounts then
due and unpaid upon Securities of such series for principal (and premium, if any) and interest, in respect of which or for the
benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal (and premium, if any) and interest, respectively; and
(4) FOURTH: To the payment of the remainder,
if any, to the Company or any other Person lawfully entitled thereto.
Section 6.04 Limitation on Suits.
No holder of any Security of any series
shall have any right by virtue or by availing of any provision of this Indenture to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless (i) such Securityholder previously shall have given to the Trustee written notice of an Event of Default
and of the continuance thereof with respect to the Securities of such series specifying such Event of Default, as hereinbefore
provided; (ii) the holders of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding
shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder;
(iii) such Securityholder or Securityholders shall have offered, and if requested, provided to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request; (iv) the Trustee
for 90 days after its receipt of such notice, request and offer of indemnity, shall have failed to institute any such action, suit
or proceeding and (v) during such 90-day period, the holders of a majority in principal amount of the Securities of that series
do not give the Trustee a direction inconsistent with the request.
Notwithstanding anything contained herein
to the contrary or any other provisions of this Indenture, the right of any holder of any Security to receive payment of the principal
of (and premium, if any) and interest on such Security, as therein provided, on or after the respective due dates expressed in
such Security (or in the case of redemption, on the redemption date), or to institute suit for the enforcement of any such payment
on or after such respective dates or redemption date, shall not be impaired or affected without the consent of such holder and
by accepting a Security hereunder it is expressly understood, intended and covenanted by the taker and holder of every Security
of such series with every other such taker and holder and the Trustee, that no one or more holders of Securities of such series
shall have any right in any manner whatsoever by virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of the holders of any other of such Securities, or to obtain or seek to obtain priority over or preference
to any other such holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all holders of Securities of such series. For the protection and enforcement of the provisions of
this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 6.05 Rights and Remedies Cumulative;
Delay or Omission Not Waiver.
(a) Except as otherwise provided in Section
2.07, all powers and remedies given by this Article to the Trustee or to the Securityholders shall, to the extent permitted by
law, be deemed cumulative and not exclusive of any other powers and remedies available to the Trustee or the holders of the Securities,
by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to such Securities.
(b) No delay or omission of the Trustee
or of any holder of any of the Securities to exercise any right or power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 6.04, every power and remedy given by this Article or by law to the Trustee
or the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
Section 6.06 Control by Securityholders.
The holders of a majority in aggregate principal
amount of the Securities of any series at the time Outstanding, determined in accordance with Section 8.04, shall have the right
to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee with respect to such series; provided, however, that such direction shall not be
in conflict with any rule of law or with this Indenture or subject the Trustee in its sole discretion to personal liability. Subject
to the provisions of Section 7.01, the Trustee shall have the right to decline to follow any such direction if the Trustee
in good faith shall, by a Responsible Officer or officers of the Trustee, determine that the proceeding so directed, subject to
the Trustee’s duties under the Trust Indenture Act, would involve the Trustee in personal liability or might be unduly prejudicial
to the Securityholders not involved in the proceeding (it being understood that the Trustee has no duty to determine whether any
such direction is prejudicial to any Securityholder). The holders of a majority in aggregate principal amount of the Securities
of any series at the time Outstanding affected thereby, determined in accordance with Section 8.04, may on behalf of the holders
of all of the Securities of such series waive any past default in the performance of any of the covenants contained herein or established
pursuant to Section 2.01 with respect to such series and its consequences, except a default in the payment of the principal of,
or premium, if any, or interest on, any of the Securities of that series as and when the same shall become due by the terms of
such Securities otherwise than by acceleration (unless such default has been cured and a sum sufficient to pay all matured installments
of interest and principal and any premium has been deposited with the Trustee (in accordance with Section 6.01(c))). Upon any such
waiver, the default covered thereby shall be deemed to be cured for all purposes of this Indenture and the Company, the Trustee
and the holders of the Securities of such series shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 6.07 Undertaking to Pay Costs.
All parties to this Indenture agree, and
each holder of any Securities by such holder’s acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made
by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted
by any Securityholder, or group of Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities
of any series, or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of (or premium,
if any) or interest on any Security of such series, on or after the respective due dates expressed in such Security or established
pursuant to this Indenture.
Article
7.
CONCERNING THE TRUSTEE
Section 7.01 Certain Duties and Responsibilities
of Trustee.
(a) The Trustee, prior to the occurrence
of an Event of Default with respect to the Securities of a series and after the curing of all Events of Default with respect to
the Securities of that series that may have occurred, shall undertake to perform with respect to the Securities of such series
such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants shall be read into this
Indenture against the Trustee. In case an Event of Default with respect to the Securities of a series has occurred (that has not
been cured or waived), the Trustee shall exercise with respect to Securities of that series such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(b) No provision of this Indenture shall
be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) prior to the occurrence of an Event of
Default with respect to the Securities of a series and after the curing or waiving of all such Events of Default with respect to
that series that may have occurred:
(i) the duties and obligations of the Trustee
shall with respect to the Securities of such series be determined solely by the express provisions of this Indenture, and the Trustee
shall not be liable with respect to the Securities of such series except for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against
the Trustee; and
(ii) in the absence of negligence or willful
misconduct on the part of the Trustee, the Trustee may with respect to the Securities of such series conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy
of mathematical calculations or other facts stated therein);
(2) the Trustee shall not be liable to any
Securityholder or to any other Person for any error of judgment made in good faith by a Responsible Officer or Responsible Officers
of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in accordance with the direction of the holders of not less than
a majority in principal amount of the Securities of any series at the time Outstanding relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee
under this Indenture with respect to the Securities of that series;
(4) none of the provisions contained in this
Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance
of any of its duties or in the exercise of any of its rights or powers if there is reasonable ground for believing that the repayment
of such funds or liability is not reasonably assured to it under the terms of this Indenture or adequate indemnity against such
risk is not reasonably assured to it;
(5) the Trustee shall not be required to give
any bond or surety in respect of the performance of its powers or duties hereunder;
(6) the permissive right of the Trustee to
do things enumerated in this Indenture shall not be construed as a duty of the Trustee; and
(7) no Trustee shall have any duty or responsibility
for any act or omission of any other Trustee appointed with respect to a series of Securities hereunder.
Section 7.02 Certain Rights of Trustee.
Except as otherwise provided in Section 7.01:
(a) The Trustee may conclusively rely and
shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, judgment, approval, bond, security or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) Any request, direction, order or demand
of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution or an instrument signed in the name of the
Company by any authorized Officer of the Company (unless other evidence in respect thereof is specifically prescribed herein);
(c) The Trustee may consult with counsel
of its selection and the opinion or written advice of such counsel or, if requested, any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or omitted hereunder in good faith and in reliance thereon;
(d) The Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders
pursuant to the provisions of this Indenture, unless such Securityholders shall have offered, and if requested, provided to the
Trustee security or indemnity acceptable to the Trustee against the costs, expenses and liabilities that may be incurred therein
or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of
Default with respect to a series of the Securities (that has not been cured or waived), to exercise with respect to Securities
of that series such of the rights and powers vested in it by this Indenture, and to use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs;
(e) The Trustee shall not be liable for
any action taken or omitted to be taken by it in good faith and believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Indenture;
(f) The Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, judgment, approval, bond, security, or other papers or documents or inquire as to the performance by the
Company of one of its covenants under this Indenture, unless requested in writing so to do by the holders of not less than a majority
in principal amount of the Outstanding Securities of the particular series affected thereby (determined as provided in Section 8.04);
provided, however, that if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require security or indemnity acceptable
to the Trustee against such costs, expenses or liabilities as a condition to so proceeding. The reasonable expense of every such
examination shall be paid by the Company or, if paid by the Trustee, shall be repaid by the Company upon demand;
(g) The Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall
not be responsible for the acts or omissions of any agent or attorney appointed with due care by it hereunder;
(h) In no event shall the Trustee be responsible
or liable for special, indirect, punitive, incidental or consequential loss or damage of any kind whatsoever (including, but not
limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless
of the form of action;
(i) The Trustee agrees to accept and act
upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured
electronic methods; provided, however, that such instructions or directions shall be signed by an authorized representative
of the party providing such instructions or directions. If the party elects to give the Trustee e-mail or facsimile instructions
(or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s
understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses
arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such
instructions conflict or are inconsistent with a subsequent written instruction. The party providing electronic instructions agrees
to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including
without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third
parties. The Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals
and/or titles of officers authorized at such time to furnish the Trustee with Officer’s Certificates, Company Orders and
any other matters or directions pursuant to this Indenture;
(j) The rights, privileges, protections,
immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and
shall be enforceable by, the Trustee in each of its capacities hereunder and under the Securities, and each agent, custodian or
other person employed to act under this Indenture; and
(k) The Trustee shall not be deemed to have
knowledge of any Default or Event of Default (other than an Event of Default constituting the failure to pay the interest on, or
the principal of, the Securities if the Trustee also serves the paying agent for such Securities) until the Trustee shall have
received written notification in the manner set forth in this Indenture or a Responsible Officer of the Trustee shall have obtained
actual knowledge.
Section 7.03 Trustee Not Responsible
for Recitals or Issuance or Securities.
(a) The recitals contained herein and, in
the Securities, shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness
of the same. The Trustee shall not be responsible for any statement in any registration statement, prospectus, or any other document
in connection with the sale of Securities. The Trustee shall not be responsible for any rating on the Securities or any action
or omission of any rating agency.
(b) The Trustee makes no representations
as to the validity or sufficiency of this Indenture or of the Securities.
(c) The Trustee shall not be accountable
for the use or application by the Company of any of the Securities or of the proceeds of such Securities, or for the use or application
of any moneys paid over by the Trustee in accordance with any provision of this Indenture or established pursuant to Section 2.01,
or for the use or application of any moneys received by any paying agent other than the Trustee.
Section 7.04 May Hold Securities.
The Trustee or any paying agent or Security
Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would
have if it were not Trustee, paying agent or Security Registrar.
Section 7.05 Moneys Held in Trust.
Subject to the provisions of Section 11.05,
all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated from other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any moneys received by it hereunder except such as it may agree with the Company to pay thereon.
Section 7.06 Compensation and Reimbursement.
(a) The Company shall pay to the Trustee
for each of its capacities hereunder from time to time compensation for its services as the Company and the Trustee shall from
time to time agree upon in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee
of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred by
it. Such expenses shall include the reasonable compensation and expenses of the Trustee’s agents and counsel.
(b) The Company shall indemnify each of
the Trustee in each of its capacities hereunder against any loss, liability or expense (including the cost of defending itself
and including the reasonable compensation and expenses of the Trustee’s agents and counsel) incurred by it except as set
forth in Section 7.06(c) in the exercise or performance of its powers, rights or duties under this Indenture as Trustee or Agent
and the enforcement of this Indenture (including this Section). 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 separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for
any settlement made without its consent, which consent shall not be unreasonably withheld. This indemnification shall apply to
officers, directors, employees, shareholders and agents of the Trustee.
(c) The Company need not reimburse any expense
or indemnify against any loss or liability incurred by the Trustee or by any officer, director, employee, shareholder or agent
of the Trustee through negligence or willful misconduct as determined by a final order of a court of competent jurisdiction.
(d) To ensure the Company’s payment
obligations in this Section, the Trustee shall have a lien prior to the Securities on all funds or property held or collected by
the Trustee, except that held in trust to pay principal of or interest on particular Securities. When the Trustee incurs expenses
or renders services in connection with an Event of Default specified in Section 6.01(a)(4) or Section 6.01(a)(5), the expenses
(including the reasonable fees and expenses of its counsel) and the compensation for services in connection therewith are to constitute
expenses of administration under any bankruptcy law. The provisions of this Section 7.06 shall survive the termination of this
Indenture and the resignation or removal of the Trustee.
Section 7.07 Reliance on Officer’s
Certificate.
Except as otherwise provided in Section
7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it reasonably necessary or desirable
that a matter be proved or established prior to taking or suffering or omitting to take any action hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or willful misconduct on
the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate delivered to the
Trustee and such certificate, in the absence of negligence or willful misconduct on the part of the Trustee, shall be full warrant
to the Trustee for any action taken, suffered or omitted to be taken by it under the provisions of this Indenture upon the faith
thereof.
Section 7.08 Disqualification; Conflicting
Interests.
If the Trustee has or shall acquire any
“conflicting interest” within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the Company
shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section 7.09 Corporate Trustee Required;
Eligibility.
There shall at all times be a Trustee with
respect to the Securities issued hereunder which shall at all times be a corporation organized and doing business under the laws
of the United States of America or any state or territory thereof or of the District of Columbia, or a corporation or other Person
permitted to act as trustee by the Commission, authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision or examination by federal,
state, territorial, or District of Columbia authority.
If such corporation or other Person publishes
reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such corporation or other Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of condition so published. The Company may not, nor
may any Person directly or indirectly controlling, controlled by, or under common control with the Company, serve as Trustee. In
case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.10.
Section 7.10 Resignation and Removal;
Appointment of Successor.
(a) The Trustee or any successor hereafter
appointed may at any time resign with respect to the Securities of one or more series by giving written notice thereof to the Company
and the Securityholders of such series. Upon receiving such notice of resignation, the Company shall promptly appoint a successor
trustee with respect to Securities of such series by written instrument, in duplicate, executed by order of the Board of Directors,
one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor
trustee shall have been so appointed and have accepted appointment within 30 days after the sending of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee with respect
to Securities of such series, or any Securityholder of that series who has been a bona fide holder of a Security or Securities
for at least six months may on behalf of himself and all others similarly situated, petition any such court for the appointment
of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any one of the following
shall occur:
(1) the Trustee shall fail to comply with
the provisions of Section 7.08 after written request therefor by the Company or by any Securityholder who has been a bona fide
holder of a Security or Securities for at least six months; or
(2) the Trustee shall cease to be eligible
in accordance with the provisions of Section 7.09 and shall fail to resign after written request therefor by the Company or by
any such Securityholder; or
(3) the Trustee shall become incapable of
acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the Trustee
or of its property shall be appointed or consented to, or any public officer shall take charge or control of the Trustee or of
its property or affairs for the purpose of rehabilitation, conservation or liquidation; then, in any such case, the Company may
remove the Trustee with respect to all Securities and appoint a successor trustee by written instrument, in duplicate, executed
by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the
successor trustee, or any Securityholder who has been a bona fide holder of a Security or Securities for at least six months may,
on behalf of that holder and all others similarly situated, petition any court of competent jurisdiction, at the expense of the
Company, for the removal of the Trustee and the appointment of a successor trustee. Such court may thereupon after such notice,
if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate
principal amount of the Securities of any series at the time Outstanding may at any time, at the expense of the Company, remove
the Trustee with respect to such series by so notifying the Trustee and the Company and may appoint a successor Trustee for such
series with the consent of the Company.
(d) Any resignation or removal of the Trustee
and appointment of a successor trustee with respect to the Securities of a series pursuant to any of the provisions of this Section
shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant
to this Section may be appointed with respect to the Securities of one or more series or all of such series, and at any time there
shall be only one Trustee with respect to the Securities of any particular series.
Section 7.11 Acceptance of Appointment
by Successor.
(a) In case of the appointment hereunder
of a successor trustee with respect to all Securities, every such successor trustee so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor
trustee, such retiring Trustee shall, upon payment of any amounts due to it pursuant to the provisions of Section 7.06, execute
and deliver an instrument transferring to such successor trustee all the rights, powers, and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder
of a successor trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and
each successor trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental
hereto wherein each successor trustee shall accept such appointment and which (i) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor trustee relates,
(ii) shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust,
that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered
by any other such Trustee and that no Trustee shall be responsible for any act or failure to act on the part of any other Trustee
hereunder; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein, such retiring Trustee shall with respect to the Securities of that or those
series to which the appointment of such successor trustee relates have no further responsibility for the exercise of rights and
powers or for the performance of the duties and obligations vested in the Trustee under this Indenture, and each such successor
trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor trustee relates;
but, on request of the Company or any successor trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor trustee, to the extent contemplated by such supplemental indenture, the property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the appointment of such successor trustee relates.
(c) Upon request of any such successor trustee,
the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor trustee
all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept its
appointment unless at the time of such acceptance such successor trustee shall be qualified and eligible under this Article.
(e) Upon acceptance of appointment by a
successor trustee as provided in this Section, the Company shall send notice of the succession of such trustee hereunder to the
Securityholders. If the Company fails to transmit such notice within 10 days after acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be transmitted at the expense of the Company.
Section 7.12 Merger, Conversion, Consolidation
or Succession to Business.
Any corporation into which the Trustee may
be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of
the Trustee, including the administration of the trust created by this Indenture, shall be the successor of the Trustee hereunder,
provided that such corporation shall be qualified under the provisions of Section 7.08 and eligible under the provisions
of Section 7.09, without the execution or filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 7.13 Preferential Collection
of Claims Against the Company.
The Trustee shall comply with Section 311(a)
of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee
who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
Section 7.14 Notice of Default.
If any Event of Default occurs and is continuing
and if such Event of Default is actually known to a Responsible Officer of the Trustee, the Trustee shall send to each Securityholder
in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act notice of the Event of Default within the
earlier of 90 days after it occurs and 30 days after it is actually known to a Responsible Officer of the Trustee or written notice
of it is received by the Trustee, unless such Event of Default has been cured; provided, however, that, except in
the case of a default in the payment of the principal of (or premium, if any) or interest on any Security, the Trustee shall be
protected in withholding such notice if and so long as the Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Securityholders.
Article
8.
CONCERNING THE SECURITYHOLDERS
Section 8.01 Evidence of Action by
Securityholders.
Whenever in this Indenture it is provided
that the holders of a majority or specified percentage in aggregate principal amount of the Securities of a particular series may
take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any
other action), the fact that at the time of taking any such action the holders of such majority or specified percentage of that
series have joined therein may be evidenced by any instrument or any number of instruments of similar tenor executed by such holders
of Securities of that series in person or by agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders
of any series any request, demand, authorization, direction, notice, consent, waiver or other action, the Company may, at its option,
as evidenced by an Officer’s Certificate, fix in advance a record date for such series for the determination of Securityholders
entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action, but the Company shall
have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver
or other action may be given before or after the record date, but only the Securityholders of record at the close of business on
the record date shall be deemed to be Securityholders for the purposes of determining whether Securityholders of the requisite
proportion of Outstanding Securities of that series have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other action, and for that purpose the Outstanding Securities of that series shall be computed
as of the record date; provided, however, that no such authorization, agreement or consent by such Securityholders
on the record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not
later than six months after the record date.
Section 8.02 Proof of Execution by
Securityholders.
Subject to the provisions of Section 7.01,
proof of the execution of any instrument by a Securityholder (such proof will not require notarization) or his or her agent or
proxy and proof of the holding by any Person of any of the Securities shall be sufficient if made in the following manner:
(a) The fact and date of the execution by
any such Person of any instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership of Securities shall be
proved by the Security Register of such Securities or by a certificate of the Security Registrar thereof.
The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
Section 8.03 Who May be Deemed Owners.
Prior to the due presentment for registration
of transfer of any Security, the Company, the Trustee, any paying agent and any Security Registrar may deem and treat the Person
in whose name such Security shall be registered upon the books of the Security Registrar as the absolute owner of such Security
(whether or not such Security shall be overdue and notwithstanding any notice of ownership or writing thereon made by anyone other
than the Security Registrar) for the purpose of receiving payment of or on account of the principal of, premium, if any, and (subject
to Section 2.03) interest on such Security and for all other purposes; and neither the Company nor the Trustee nor any paying agent
nor any Security Registrar shall be affected by any notice to the contrary.
Section 8.04 Certain Securities Owned
by Company Disregarded.
In determining whether the holders of the
requisite aggregate principal amount of Securities of a particular series have concurred in any direction, consent or waiver under
this Indenture, the Securities of that series that are owned by the Company or any other obligor on the Securities of that series
or by any Person directly or indirectly controlling or controlled by or under common control with the Company or any other obligor
on the Securities of that series shall be disregarded and deemed not to be Outstanding for the purpose of any such determination,
except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent or
waiver, only Securities of such series that the Trustee actually knows are so owned shall be so disregarded. The Securities so
owned that have been pledged in good faith may be regarded as Outstanding for the purposes of this Section, if the pledgee shall
establish to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee
is not a Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company
or any such other obligor. In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
Section 8.05 Actions Binding on Future
Securityholders.
At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the holders of the majority or percentage
in aggregate principal amount of the Securities of a particular series specified in this Indenture in connection with such action,
any holder of a Security of that series that is shown by the evidence to be included in the Securities the holders of which have
consented to such action may, by filing written notice with the Trustee, and upon proof of holding as provided in Section 8.02,
revoke such action so far as concerns such Security. Except as aforesaid any such action taken by the holder of any Security shall
be conclusive and binding upon such holder and upon all future holders and owners of such Security, and of any Security issued
in exchange therefor, on registration of transfer thereof or in place thereof, irrespective of whether or not any notation in regard
thereto is made upon such Security. Any action taken by the holders of the majority or percentage in aggregate principal amount
of the Securities of a particular series specified in this Indenture in connection with such action shall be conclusively binding
upon the Company, the Trustee and the holders of all the Securities of that series.
Article
9.
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures
Without the Consent of Securityholders.
In addition to any supplemental indenture
otherwise authorized by this Indenture, the Company and the Trustee may from time to time and at any time enter into an indenture
or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as then in effect), without
the consent of the Securityholders, for one or more of the following purposes:
(a) to cure any ambiguity, defect, or inconsistency
herein or in the Securities of any series;
(b) to comply with Article 10;
(c) to provide for uncertificated Securities
in addition to or in place of certificated Securities;
(d) to add to the covenants, restrictions,
conditions or provisions relating to the Company for the benefit of the holders of all or any series of Securities (and if such
covenants, restrictions, conditions or provisions are to be for the benefit of less than all series of Securities, stating that
such covenants, restrictions, conditions or provisions are expressly being included solely for the benefit of such series), to
make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions
or provisions an Event of Default, or to surrender any right or power herein conferred upon the Company;
(e) to add to, delete from, or revise the
conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication, and delivery of
Securities, as herein set forth;
(f) to make any change that does not adversely
affect the rights of any Securityholder in any material respect;
(g) to provide for the issuance of and establish
the form and terms and conditions of the Securities of any series as provided in Section 2.01, to establish the form of any certifications
required to be furnished pursuant to the terms of this Indenture or any series of Securities, or to add to the rights of the holders
of any series of Securities;
(h) to evidence and provide for the acceptance
of appointment hereunder by a successor trustee;
(i) to conform the text of this Indenture,
any indentures supplemental hereto or the forms or terms of such series of Securities issued hereunder to any provision of the
“Description of Notes” section of the relevant offering document of such series to the extent that such provision in
such “Description of Notes” was intended to be a verbatim recitation of a provision of this Indenture, as provided
in an Officer’s Certificate; or
(j) to comply with any requirements of the
Commission or any successor in connection with the qualification of this Indenture under the Trust Indenture Act.
The Trustee is hereby authorized to join
with the Company in the execution of any such supplemental indenture, and to make any further appropriate agreements and stipulations
that may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental indenture that affects
the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by
the provisions of this Section may be executed by the Company and the Trustee without the consent of the holders of any of the
Securities at the time Outstanding, notwithstanding any of the provisions of Section 9.02.
Section 9.02 Supplemental Indentures
With Consent of Securityholders.
With the consent (evidenced as provided
in Section 8.01) of the holders of not less than a majority in aggregate principal amount of the Securities of each series affected
by such supplemental indenture or indentures at the time Outstanding, the Company, when authorized by a Board Resolution, and the
Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to
the provisions of the Trust Indenture Act as then in effect) for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner not covered
by Section 9.01 the rights of the holders of the Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the holders of each Security then Outstanding and affected thereby,
(a) extend the fixed maturity of any Securities of any series, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any premium payable upon the redemption thereof or (b) reduce the aforesaid
percentage of Securities, the holders of which are required to consent to any such supplemental indenture.
It shall not be necessary for the consent
of the Securityholders of any series affected thereby under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Section 9.03 Effect of Supplemental
Indentures.
Upon the execution of any supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, this Indenture shall, with respect to such series, be and be deemed
to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company and the holders of Securities of the series affected thereby shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture
for any and all purposes.
Section 9.04 Securities Affected by
Supplemental Indentures.
Securities of any series affected by a supplemental
indenture, authenticated and delivered after the execution of such supplemental indenture pursuant to the provisions of this Article
or of Section 10.01, may bear a notation in form approved by the Company, provided such form meets the requirements of any
securities exchange upon which such series may be listed, as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of that series so modified as to conform, in the opinion of the Board of Directors,
to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated
by the Trustee and delivered in exchange for the Securities of that series then Outstanding.
Section 9.05 Execution of Supplemental
Indentures.
Upon the request of the Company, accompanied
by its Board Resolutions authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall join with the Company in
the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties
or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be obligated to
enter into such supplemental indenture. The Trustee, subject to the provisions of Section 7.01, shall receive an Officer’s
Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article
is authorized or permitted by the terms of this Article, such supplemental indenture is the legal, valid and binding obligation
of the Company and that all conditions precedent to the execution of the supplemental indenture have been complied with.
Promptly after the execution by the Company
and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Company shall (or shall direct the
Trustee to) send a notice, setting forth in general terms the substance of such supplemental indenture, to the Securityholders
of all series affected thereby as their names and addresses appear upon the Security Register. Any failure of the Company to send,
or cause the sending of, such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
Article
10.
SUCCESSOR ENTITY
Section 10.01 Company May Consolidate,
Etc.
Nothing contained in this Indenture shall
prevent any consolidation or merger of the Company with or into any other Person (whether or not affiliated with the Company) or
successive consolidations or mergers in which the Company or its successor or successors shall be a party or parties, or shall
prevent any sale, conveyance, transfer or other disposition of the property of the Company or its successor or successors as an
entirety, or substantially as an entirety, to any other Person (whether or not affiliated with the Company or its successor or
successors); provided, however, the Company hereby covenants and agrees that, upon any such consolidation or merger
(in each case, if the Company is not the survivor of such transaction) or any such sale, conveyance, transfer or other disposition
(other than a sale, conveyance, transfer or other disposition to a Subsidiary of the Company), the due and punctual payment of
the principal of (premium, if any) and interest on all of the Securities of all series in accordance with the terms of each series,
according to their tenor, and the due and punctual performance and observance of all the covenants and conditions of this Indenture
with respect to each series or established with respect to such series pursuant to Section 2.01 to be kept or performed by the
Company shall be expressly assumed, by supplemental indenture (which shall conform to the provisions of the Trust Indenture Act,
as then in effect) reasonably satisfactory in form to the Trustee executed and delivered to the Trustee by the entity formed by
such consolidation, or into which the Company shall have been merged, or by the entity which shall have acquired such property.
Section 10.02 Successor Entity Substituted.
(a) In case of any such consolidation, merger,
sale, conveyance, transfer or other disposition and upon the assumption by the successor entity by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to the Trustee, of the obligations set forth under Section 10.01 on all of
the Securities of all series Outstanding, such successor entity shall succeed to and be substituted for the Company with the same
effect as if it had been named as the Company herein, and thereupon the predecessor corporation shall be relieved of all obligations
and covenants under this Indenture and the Securities.
(b) In case of any such consolidation, merger,
sale, conveyance, transfer or other disposition, such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
(c) Nothing contained in this Article shall
require any action by the Company in the case of a consolidation or merger of any Person into the Company where the Company is
the survivor of such transaction, or the acquisition by the Company, by purchase or otherwise, of all or any part of the property
of any other Person (whether or not affiliated with the Company).
Article
11.
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge
of Indenture.
If at any time: (a) the Company shall have
delivered to the Trustee for cancellation all Securities of a series theretofore authenticated and not delivered to the Trustee
for cancellation (other than any Securities that shall have been destroyed, lost or stolen and that shall have been replaced or
paid as provided in Section 2.07 and Securities for whose payment money or Governmental Obligations have theretofore been deposited
in trust or segregated and held in trust by the Company and thereupon repaid to the Company or discharged from such trust, as provided
in Section 11.05); or (b) all such Securities of a particular series not theretofore delivered to the Trustee for cancellation
shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and the Company shall deposit
or cause to be deposited with the Trustee as trust funds the entire amount in moneys or Governmental Obligations or a combination
thereof, sufficient in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay at maturity or upon redemption all Securities of that series not theretofore delivered
to the Trustee for cancellation, including principal (and premium, if any) and interest due or to become due to such date of maturity
or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other sums payable
hereunder with respect to such series by the Company then this Indenture shall thereupon cease to be of further effect with respect
to such series except for the provisions of Section 2.03, Section 2.05, Section 2.07, Section 4.01, Section 4.02, Section
4.03, Section 7.10, Section 11.05 and Section 13.04, that shall survive until the date of maturity or redemption date, as
the case may be, and Section 7.06 and Section 11.05, that shall survive to such date and thereafter, and the Trustee, on demand
of the Company and at the cost and expense of the Company shall execute such instruments reasonably requested by the Company acknowledging
satisfaction of and discharging this Indenture with respect to such series.
Section 11.02 Discharge of Obligations.
If at any time all such Securities of a
particular series not heretofore delivered to the Trustee for cancellation or that have not become due and payable as described
in Section 11.01 shall have been paid by the Company by depositing irrevocably with the Trustee as trust funds moneys or an amount
of Governmental Obligations sufficient to pay at maturity or upon redemption all such Securities of that series not theretofore
delivered to the Trustee for cancellation, including principal (and premium, if any) and interest due or to become due to such
date of maturity or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other
sums payable hereunder by the Company with respect to such series, then after the date such moneys or Governmental Obligations,
as the case may be, are deposited with the Trustee the obligations of the Company under this Indenture with respect to such series
shall cease to be of further effect except for the provisions of Section 2.03, Section 2.05, Section 2.07, Section 4.01, Section
4.02, Section 4.03, Section 7.06, Section 7.10, Section 11.05 and Section 13.04 hereof that shall survive until such Securities
shall mature and be paid. Thereafter, Section 7.06 and Section 11.05 shall survive.
Section 11.03 Deposited Moneys to be
Held in Trust.
All moneys or Governmental Obligations deposited
with the Trustee pursuant to Section 11.01 or Section 11.02 shall be held in trust and shall be available for payment as due,
either directly or through any paying agent (including the Company acting as its own paying agent), to the holders of the particular
series of Securities for the payment or redemption of which such moneys or Governmental Obligations have been deposited with the
Trustee.
Section 11.04 Payment of Moneys Held
by Paying Agents.
In connection with the satisfaction and
discharge of this Indenture all moneys or Governmental Obligations then held by any paying agent under the provisions of this Indenture
shall, upon demand of the Company, be paid to the Trustee and thereupon such paying agent shall be released from all further liability
with respect to such moneys or Governmental Obligations.
Section 11.05 Repayment to Company.
Subject to applicable abandoned property
law any moneys or Governmental Obligations deposited with any paying agent or the Trustee, or then held by the Company, in trust
for payment of principal of or premium, if any, or interest on the Securities of a particular series that are not applied but remain
unclaimed by the holders of such Securities for at least two years after the date upon which the principal of (and premium, if
any) or interest on such Securities shall have respectively become due and payable, or such other shorter period set forth in applicable
escheat or abandoned or unclaimed property law, shall be repaid to the Company on May 31 of each year or upon the Company’s
request or (if then held by the Company) shall be discharged from such trust; and thereupon the paying agent and the Trustee shall
be released from all further liability with respect to such moneys or Governmental Obligations, and the holder of any of the Securities
entitled to receive such payment shall thereafter, as a general creditor, look only to the Company for the payment thereof.
Article
12.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 12.01 No Recourse.
No recourse under or upon any obligation,
covenant or agreement of this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof, shall
be had against any incorporator, stockholder, officer or director, past, present or future as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely corporate obligations, and that no such personal
liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers or directors as such,
of the Company or of any predecessor or successor corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom; and that any and all such personal liability of every name and nature, either at common law or in equity
or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, stockholder, officer
or director as such, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants
or agreements contained in this Indenture or in any of the Securities or implied therefrom, are hereby expressly waived and released
as a condition of, and as a consideration for, the execution of this Indenture and the issuance of such Securities.
Article
13.
MISCELLANEOUS PROVISIONS
Section 13.01 Effect on Successors
and Assigns.
All the covenants, stipulations, promises
and agreements in this Indenture made by or on behalf of the Company shall bind its successors and assigns, whether so expressed
or not.
Section 13.02 Actions by Successor.
Any act or proceeding by any provision of
this Indenture authorized or required to be done or performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the corresponding board, committee or officer of any corporation that shall at
the time be the lawful successor of the Company.
Section 13.03 Surrender of Company
Powers.
The Company by instrument in writing executed
by authority of its Board of Directors and delivered to the Trustee may surrender any of the powers reserved to the Company, and
thereupon such power so surrendered shall terminate both as to the Company and as to any successor corporation.
Section 13.04 Notices.
Except as otherwise expressly provided herein,
any notice, request or demand that by any provision of this Indenture is required or permitted to be given, made or served by the
Trustee, the Security Registrar, any paying or other agent under this Indenture or by the holders of Securities or by any other
Person pursuant to this Indenture to or on the Company may be given or served by being deposited in first class mail, postage prepaid,
addressed (until another address is filed in writing by the Company with the Trustee), as follows:
Any notice, election, request or demand
by the Company or any Securityholder or by any other Person pursuant to this Indenture to or upon the Trustee shall be deemed to
have been sufficiently given or made, for all purposes, if given or made in writing at the Corporate Trust Office of the Trustee.
Section 13.05 Governing Law; Jurisdiction;
Jury Trial Waiver.
This Indenture and each Security shall be
governed by, and construed in accordance with, the internal laws of the State of New York, except to the extent that the Trust
Indenture Act is applicable.
Each party hereto irrevocably and unconditionally
submits, for itself and its property, to the exclusive jurisdiction of any U.S. Federal or New York State court sitting in the
Borough of Manhattan, New York, New York in any action or proceeding arising out of or relating to this Indenture, or for recognition
or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law,
in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Indenture
shall affect any right that the parties hereto may otherwise have to bring any action or proceeding relating to this Indenture
against any party hereto or its properties in the courts of any jurisdiction.
EACH PARTY HERETO, AND EACH HOLDER OF A
SECURITY BY ACCEPTANCE THEREOF, HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS INDENTURE.
Section 13.06 Treatment of Securities
as Debt.
It is intended that the Securities will
be treated as indebtedness and not as equity for federal income tax purposes. The provisions of this Indenture shall be interpreted
to further this intention.
Section 13.07 Certificates and Opinions
as to Conditions Precedent.
(a) Upon any application or demand by the
Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish to the Trustee
an Officer’s Certificate stating that all conditions precedent provided for in this Indenture (other than the certificate
to be delivered pursuant to Section 13.12) relating to the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional certificate or opinion need be furnished.
(b) Each certificate or opinion provided
for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant in this Indenture (other
than the certificate to be delivered pursuant to Section 13.12 of this Indenture or Section 314(a)(1) of the Trust Indenture Act)
shall include (i) a statement that the Person making such certificate or opinion has read such covenant or condition; (ii) a brief
statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such
certificate or opinion are based; (iii) a statement that, in the opinion of such Person, he has made such examination or investigation
as is reasonably necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been
complied with; and (iv) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied
with.
Section 13.08 Payments on Business
Days.
Except as provided pursuant to Section 2.01
pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one or more indentures supplemental
to this Indenture, in any case where the date of maturity of interest or principal of any Security or the date of redemption of
any Security shall not be a Business Day, then payment of interest or principal (and premium, if any) may be made on the next succeeding
Business Day with the same force and effect as if made on the nominal date of maturity or redemption, and no interest shall accrue
on such payment for the period after such nominal date.
Section 13.09 Conflict with Trust Indenture
Act.
If and to the extent that any provision
of this Indenture limits, qualifies or conflicts with the duties imposed by Section 318(c) of the Trust Indenture Act, such imposed
duties shall control.
Section 13.10 Counterparts.
This Indenture may be executed in any number
of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
The exchange of copies of this Indenture and of signature pages by facsimile, pdf or other electronic transmission shall constitute
effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for
all purposes. Signatures of the parties hereto transmitted by facsimile, pdf or other electronic methods shall be deemed to be
their original signatures for all purposes.
Section 13.11 Severability.
In case any one or more of the provisions
contained in this Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of such
Securities, but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision
had never been contained herein or therein.
Section 13.12 Compliance Certificates.
The Company shall deliver to the Trustee,
within 120 days after the end of each fiscal year during which any Securities of any series were outstanding, an Officer’s
Certificate stating whether or not the signers know of any Event of Default that occurred during such fiscal year. Such Officer’s
Certificate shall contain a certification from the principal executive officer, principal financial officer or principal accounting
officer of the Company that a review has been conducted of the activities of the Company and the Company’s performance under
this Indenture and that the Company has complied with all conditions and covenants under this Indenture. For purposes of this Section
13.12, such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture.
If the officer of the Company signing such certificate has knowledge of such an Event of Default, the certificate shall describe
any such Event of Default and its status.
Section 13.13 U.S.A. Patriot Act.
The parties hereto acknowledge that in accordance
with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to help fight the funding
of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity
that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide
the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot
Act.
Section 13.14 Force Majeure.
In no event shall the Trustee, the Security
Registrar, any paying agent or any other agent under this Indenture be responsible or liable for any failure or delay in the performance
of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including without
limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes
or acts of God, epidemics or pandemics, and interruptions, loss or malfunctions or utilities, communications or computer (software
and hardware) services or the unavailability of the Federal Reserve Bank wire or telex system or other wire or communication system;
it being understood that the Trustee, the Security Registrar, any paying agent or any other agent under this Indenture shall use
reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable
under the circumstances.
Section 13.15 Table of Contents; Headings.
The table of contents and headings of the
articles and sections of this Indenture have been inserted for convenience of reference only, are not intended to be considered
a part hereof, and will not modify or restrict any of the terms or provisions hereof.
Section 13.16 E-Signatures.
Unless otherwise provided herein, the words
“execute”, “execution”, “signed”, and “signature” and words of similar import used
in or related to any document to be signed in connection with this Indenture or any of the transactions contemplated hereby (including
amendments, waivers, consents and other modifications) shall be deemed to include electronic signatures and the keeping of records
in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature
in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest extent and as provided for in any applicable
law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures
and Records Act, and any other similar state laws based on the Uniform Electronic Transactions Act, provided that, notwithstanding
anything herein to the contrary, the Trustee is under no obligation to agree to accept electronic signatures in any form or in
any format unless expressly agreed to by the Trustee pursuant to procedures approved by the Trustee.
Article
14.
SUBORDINATION OF SECURITIES
Section 14.01 Subordination Terms.
The payment by the Company of the principal
of, premium, if any, and interest on any series of securities issued hereunder shall be subordinated to the extent set forth in
an indenture supplemental hereto relating to such Securities.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed all as of the day and year first above written.
| |
CADIZ INC. |
| |
|
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
| |
|
|
| |
[NAME OF TRUSTEE], as Trustee |
| |
|
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
| CROSS-REFERENCE TABLE (1) |
|
|
| |
|
|
| Section of Trust Indenture Act of 1939, as Amended |
|
Section of
Indenture |
| 310(a) |
|
7.09 |
| 310(b) |
|
7.08 |
| |
|
7.10 |
| 310(c) |
|
Inapplicable |
| 311(a) |
|
7.13 |
| 311(b) |
|
7.13 |
| 311(c) |
|
Inapplicable |
| 312(a) |
|
5.01 |
| |
|
5.02(a) |
| 312(b) |
|
5.02(c) |
| 312(c) |
|
5.02(c) |
| 313(a) |
|
5.04(a) |
| 313(b) |
|
5.04(b) |
| 313(c) |
|
5.04(a) |
| |
|
5.04(b) |
| 313(d) |
|
5.04(c) |
| 314(a) |
|
5.03 |
| |
|
13.12 |
| 314(b) |
|
Inapplicable |
| 314(c) |
|
13.07(a) |
| 314(d) |
|
Inapplicable |
| 314(e) |
|
13.07(b) |
| 314(f) |
|
Inapplicable |
| 315(a) |
|
7.01(a) |
| |
|
7.01(b) |
| 315(b) |
|
7.14 |
| 315(c) |
|
7.01 |
| 315(d) |
|
7.01(b) |
| 315(e) |
|
6.07 |
| 316(a) |
|
6.06 |
| |
|
8.04 |
| 316(b) |
|
6.04 |
| 316(c) |
|
8.01 |
| 317(a) |
|
6.02 |
| 317(b) |
|
4.03 |
| 318(a) |
|
13.09 |
| (1) | This Cross-Reference Table does not constitute part of
the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions. |
49
Exhibit 5.1
August 13, 2024 |
Norton Rose Fulbright US LLP
1045 W. Fulton Market, Suite 1200
Chicago, Illinois 60607
United States of America |
Cadiz Inc.
550 South Hope Street, Suite 2850
Los Angeles, California 90071
| Re: | Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as legal counsel to Cadiz Inc.,
a Delaware corporation (the “Company”), in connection with the proposed issuance and sale from time to time by the Company
of (i) shares of its common stock, $0.01 par value per share (the “Common Stock”), (ii) shares of its preferred
stock, $0.01 par value per share (the “Preferred Stock”), (iii) receipts of its depositary shares, representing fractional
interests in shares of Preferred Stock (the “Depositary Shares”), (iv) one or more series of senior debt securities (the
“Senior Debt Securities”) and subordinated debt securities (the “Subordinated Debt Securities”, together with
the Senior Debt Securities, the “Debt Securities”), the forms of which are filed as exhibits to the Registration Statement
(the “Indentures”), (v) warrants to purchase shares of Common Stock, Preferred Stock, Depositary Shares or Debt Securities
(the “Warrants”), (vi) subscription rights to purchase shares of Common Stock, Preferred Stock or Depositary Shares (the
“Rights”), and (vii) units consisting of any combination of the Common Stock, Preferred Stock, Depositary Shares, Debt
Securities, Warrants and Rights (the “Units”) with an aggregate offering price of up to $200,000,000 (the Common Stock, Preferred
Stock, Depositary Shares, Debt Securities, Warrants, Rights and Units are each referred to herein as a “Security,” and collectively
as the “Securities”). The Securities may be issued and sold by the Company pursuant to a registration statement on Form S-3
(the “Registration Statement”) being filed by the Company with the Securities and Exchange Commission (the “Commission”)
under the Securities Act of 1933, as amended (the “Act”), on the date hereof. The Registration Statement includes a base prospectus
(the “Base Prospectus”), which provides that it will be supplemented in the future by one or more supplements to the Base
Prospectus (each, a “Prospectus Supplement”, and together with the Base Prospectus, a “Prospectus”).
This opinion letter is being delivered in accordance
with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining
to the contents of the Registration Statement or such related applicable Prospectus, other than as expressly stated herein with respect
to the sale and issuance of such respective Securities under such related applicable Prospectus.
We have made such legal and factual examinations
and inquiries, including an examination of originals or copies certified or otherwise identified to our satisfaction of such documents,
corporate records and instruments, as we have deemed necessary or appropriate for purposes of this opinion. We have also examined the
Registration Statement as filed with the Commission in accordance with the provisions of the Act, and the rules and regulations of the
Commission thereunder. In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted
to us as originals and the conformity to authentic original documents of all documents submitted to us as copies. As to facts material
to the opinions, statements and assumptions expressed herein, we have, with your consent, relied upon oral or written statements and representations
of officers and other representatives of the Company and others. We have not independently verified such factual matters.
Norton Rose Fulbright US LLP is a limited liability
partnership registered under the laws of Texas.
Norton Rose Fulbright US LLP, Norton Rose Fulbright LLP, Norton Rose
Fulbright Australia, Norton Rose Fulbright Canada LLP and Norton Rose Fulbright South Africa Inc are separate legal entities and all of
them are members of Norton Rose Fulbright Verein, a Swiss verein. Norton Rose Fulbright Verein helps coordinate the activities of the
members but does not itself provide legal services to clients. Details of each entity, with certain regulatory information, are available
at nortonrosefulbright.com.
| August 13, 2024 |
 |
| |
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| Page 2 |
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In expressing our opinions below, we have assumed,
with your consent, that:
| (a) | the Registration Statement (including any and all required post-effective amendments thereto) will have become effective under the
Act and will comply with all applicable laws; |
| (b) | the Registration Statement (including any and all required post-effective amendments thereto) will be effective under the Act and
will comply with all applicable laws at the time the Securities are offered or sold as contemplated by the Registration Statement (including
any and all required post-effective amendments thereto), the Base Prospectus, and the applicable Prospectus Supplement(s); |
| (c) | no stop order suspending the effectiveness of the Registration Statement (including any and all required post-effective amendments
thereto) will have been issued and remain in effect; |
| (d) | a Prospectus Supplement describing the Securities offered thereby and the offering thereof and complying with all applicable laws
will have been prepared and filed with the Commission; |
| (e) | the Securities will be offered and sold in the form and with the terms set forth in the Registration Statement (including any and
all required post-effective amendments thereto), the Base Prospectus, and the applicable Prospectus Supplement(s) and the organizational
documents of the Company, as applicable; |
| (f) | the Securities will be offered and sold in compliance with all applicable federal and state securities laws and in the manner stated
in the Registration Statement (including any and all required post-effective amendments thereto), the Base Prospectus, and the applicable
Prospectus Supplement(s); |
| (g) | the Company will have obtained any and all legally required consents, approvals, authorizations and other orders of the Commission
and any and all other regulatory authorities and other third parties necessary to offer and sell the Securities being offered; |
| (h) | a definitive purchase, underwriting, sales or similar agreement (each a “Purchase Agreement”) with respect to any Securities
offered and sold will have been duly authorized and validly executed and delivered by the Company and the other parties thereto; |
| (i) | the Indentures will have been duly authorized and validly executed and delivered by the Company and the other parties thereto; and |
| (j) | any Securities or other securities issuable upon conversion, exchange or exercise of any Security being offered and sold will be duly
authorized, created and, if appropriate, reserved for issuance upon such conversion, exchange or exercise. |
| August 13, 2024 |
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| Page 3 |
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Our opinions expressed in paragraphs 3, 4,
5, 6 and 7 below are subject to the qualifications that we express no opinion as to the applicability of, compliance with or effect of:
(i) any bankruptcy, insolvency, reorganization, preference, fraudulent conveyance, fraudulent transfer, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors generally (including, without limitation, Sections 547 and 548
of the United States Bankruptcy Code and Article 10 of the New York Debtor and Creditor Law); (ii) general principles of equity,
whether considered in a proceeding in equity or at law (including the possible unavailability of specific performance or injunctive relief),
concepts of materiality, reasonableness, good faith and fair dealing, and the discretion of the court before which a proceeding is brought;
or (iii) public policy considerations that may limit the rights of parties to obtain certain remedies.
We express no opinion as to (i) any provision
providing for the indemnification of or contribution to a party with respect to a liability where such indemnification or contribution
is contrary to public policy, (ii) consents to, or restrictions upon, governing law, jurisdiction, venue, arbitration, remedies or
judicial relief, (iii) the securities or “Blue Sky” laws of any state to the offer or sale of the Securities and (iv) the
antifraud provisions of the securities or other laws of any jurisdiction.
Subject to the foregoing and the other matters
set forth herein, it is our opinion that, as of the date hereof:
1. When
an issuance of Common Stock has been duly authorized by all necessary corporate action of the Company, upon issuance, delivery and payment
therefor in an amount not less than the par value thereof in the manner contemplated by the applicable Prospectus and by such corporate
action, and in total amounts and numbers of shares that do not exceed the respective total amounts and numbers of shares (a) available
under the Company’s certificate of incorporation (as amended, the “Certificate of Incorporation”) and (b) authorized
by the board of directors of the Company in connection with the offering contemplated by the applicable Prospectus, such shares of Common
Stock will be validly issued, fully paid and nonassessable.
2. When
a series of Preferred Stock has been duly established in accordance with the terms of the certificate of incorporation and authorized
by all necessary corporate action of the Company, upon issuance, delivery and payment therefor in an amount not less than the par value
thereof in the manner contemplated by the applicable Prospectus and by such corporate action, and in total amounts and numbers of shares
that do not exceed the respective total amounts and numbers of shares (a) available under the Certificate of Incorporation and (b) authorized
by the board of directors of the Company in connection with the offering contemplated by the applicable Prospectus, such shares of such
series of Preferred Stock will be validly issued, fully paid and nonassessable.
3. When a series of Depositary Shares has been duly established in
accordance with the terms of the depositary agreement and authorized by all necessary corporate action of the Company, upon issuance,
delivery and payment therefor in an amount not less than the par value thereof in the manner contemplated by the applicable Prospectus
and by such corporate action, and in total amounts and numbers of shares that do not exceed the respective total amounts and numbers
of shares (a) available under the Certificate of Incorporation and (b) authorized by the board of directors of the Company
in connection with the offering contemplated by the applicable Prospectus, such shares of such series of Depositary Shares will be legally
issued and entitle the registered holders thereof to the rights specified in the depositary agreement and the receipts evidencing the
Depositary Shares.
| August 13, 2024 |
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| Page 4 |
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4. When (a) the trustee has duly executed and delivered the applicable
Indenture, (b) the applicable Indenture has been duly authorized by all necessary corporate action of the Company (including, without
limitation, the adoption by the board of directors of the Company of a resolution in form and content as required by applicable law duly
authorizing the execution and delivery of such Indenture) and duly executed and delivered by the Company, (c) the applicable Indenture
has been duly qualified under the Trust Indenture Act of 1939, as amended, (d) the specific terms of a particular issuance of Debt
Securities have been duly established in accordance with such Indenture, if any, and all applicable law and authorized by all necessary
corporate action of the Company (including, without limitation, the adoption by the board of directors of the Company of a resolution
in form and content as required by applicable law duly authorizing the issuance and delivery of the Debt Securities), and (e) the
Debt Securities have been duly executed, issued and delivered against payment therefor in accordance with the provisions of the applicable
Indenture and the applicable Purchase Agreement upon payment of the consideration therefor provided for therein, such Debt Securities
will be legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
5. When
(a) a warrant agreement, if any, has been duly authorized by all necessary corporate action of the Company (including, without limitation,
the adoption by the board of directors of the Company of a resolution in form and content as required by applicable law duly authorizing
the execution and delivery of such warrant agreement) and duly executed and delivered by the Company, (b) the specific terms of a
particular issuance of Warrants have been duly established in accordance with such warrant agreement, if any, and all applicable law and
authorized by all necessary corporate action of the Company (including, without limitation, the adoption by the board of directors of
the Company of a resolution in form and content as required by applicable law duly authorizing the issuance and delivery of the Warrants),
and (c) the Warrants have been duly executed, issued and delivered against payment therefor in accordance with such warrant agreement,
if any, the applicable Purchase Agreement and all applicable law (and assuming the satisfaction of the conditions described in the applicable
numbered paragraphs of this opinion letter with respect to our opinion regarding any Securities issuable upon exercise of the Warrants),
such Warrants will be legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
6. When
(a) a unit agreement has been duly authorized by all necessary corporate action of the Company (including, without limitation, the
adoption by the board of directors of the Company of a resolution duly authorizing the execution and delivery of such unit agreement)
and duly executed and delivered by the Company, (b) the specific terms of a particular issuance of the related Units have been duly
established in accordance with such unit agreement and all applicable law and authorized by all necessary corporate action of the Company
(including, without limitation, the adoption by the board of directors of the Company of a resolution in form and content as required
by applicable law duly authorizing the issuance and delivery of the Units), and such (c) Units have been duly executed, issued and
delivered against payment therefor in accordance with such unit agreement, the applicable Purchase Agreement and all applicable law (and
assuming the satisfaction of the conditions described in the applicable numbered paragraphs of this opinion letter with respect to our
opinion regarding the Securities underlying the Units), such Units will be legally valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms.
| August 13, 2024 |
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| Page 5 |
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7. When
(a) a rights agreement, if any, has been duly authorized by all necessary corporate action of the Company (including, without limitation,
the adoption by the board of directors of the Company of a resolution in form and content as required by applicable law duly authorizing
the execution and delivery of such rights agreement) and duly executed and delivered by the Company, (b) the specific terms of a
particular issuance of Rights have been duly established in accordance with such rights agreement, if any, and all applicable law and
authorized by all necessary corporate action of the Company (including, without limitation, the adoption by the board of directors of
the Company of a resolution in form and content as required by applicable law duly authorizing the issuance and delivery of the Rights),
and (c) the Rights have been duly executed, issued and delivered against payment therefor in accordance with such rights agreement,
if any, the applicable Purchase Agreement and all applicable law (and assuming the satisfaction of the conditions described in the applicable
numbered paragraphs of this opinion letter with respect to our opinion regarding any Securities issuable upon exercise of the Rights),
such Rights will be legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
This opinion is opining upon and is limited to
the current federal laws of the United States, the state laws of the State of New York, and the Delaware General Corporation Law as such
laws presently exist and to facts as they presently exist. We express no opinion with respect to the effect or applicability of the laws
of any other jurisdiction.
This opinion is being delivered solely for the
benefit of the Company and such other persons as are entitled to rely upon it pursuant to applicable provisions of the Act. This opinion
may not be used, quoted, relied upon or referred to for any other purpose nor may this opinion be used, quoted, relied upon or referred
to by any other person, for any purpose, without our prior written consent.
We consent to your filing this opinion as an exhibit
to the Registration Statement and to the reference to our firm in the applicable Prospectus under the heading “Legal Matters.”
In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7
of the Act or the rules and regulations of the Commission thereunder.
Sincerely,
/s/ Norton Rose Fulbright US LLP
Norton Rose Fulbright US LLP
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of Cadiz Inc. of our report dated March 28, 2024 relating to the financial statements, which appears in Cadiz Inc.'s
Annual Report on Form 10-K for the year ended December 31, 2023. We also consent to the reference to us under the heading “Experts”
in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
Los Angeles, California
August 13, 2024
Exhibit
107
Calculation
of Filing Fee Table
S-3
(Form
Type)
Cadiz
Inc.
(Exact
Name of Registrant as Specified in its Charter)
Table
1: Newly Registered Securities and Carry Forward Securities
| | |
Security
Type | |
Security
Class Title | |
Fee Calculation or
Carry
Forward Rule | |
Amount
Registered (1) | | |
Proposed
Maximum
Offering
Price Per
Unit (2) | | |
Maximum Aggregate Offering Price
(3) | | |
Fee
Rate | | |
Amount
of
Registration Fee | |
| Newly
Registered Securities |
| Fees to Be
Paid | |
Equity | |
Common Stock, par
value $0.01 per share | |
457(o) | |
- | | |
$ | - | | |
$ | - | | |
| | | |
| | |
| | |
Equity | |
Preferred Stock, par value
$0.01 per share | |
457(o) | |
- | | |
$ | - | | |
$ | - | | |
| | | |
| | |
| | |
Debt | |
Debt Securities | |
457(o) | |
- | | |
$ | - | | |
$ | - | | |
| | | |
| | |
| | |
Equity | |
Depositary Shares | |
457(o) | |
- | | |
$ | - | | |
$ | - | | |
| | | |
| | |
| | |
Other | |
Warrants | |
457(o) | |
- | | |
$ | - | | |
$ | - | | |
| | | |
| | |
| | |
Other | |
Units | |
457(o) | |
- | | |
$ | - | | |
$ | - | | |
| | | |
| | |
| | |
Other | |
Subscription Rights to purchase
Preferred or Common Stock or Depositary Shares | |
457(o) | |
- | | |
$ | - | | |
$ | - | | |
| | | |
| | |
| | |
Unallocated (Universal Shelf) | |
- | |
457(o) | |
- | | |
$ | - | | |
$ | 200,000,000.00 | | |
| 0.00014760 | | |
$ | 29,520.00 | |
| | |
Total Offering
Amounts | | |
$ | 200,000,000.00 | | |
| 0.00014760 | |
| $ | 29,520.00 | |
| | |
Total Fees
Previously Paid | | |
| | | |
| | | |
| - | |
| | |
Total Fee Offsets | | |
| | | |
| | | |
| 1,151.12 | (4) |
| | |
Net Fee Due | | |
| | | |
| | | |
$ | 28,368.88 | |
Table 2: Fee Offset Claims and Sources
| | |
Registrant or Filer
Name | |
Form or Filing Type | |
File Number | |
Initial Filing Date | |
Filing
Date | | |
Fee
Offset Claimed | | |
Security Type Associated
with Fee Offset Claimed | |
Security Title Associated
with Fee Offset Claimed | |
Unsold Securities
Associated with Fee Offset Claimed | |
Unsold
Aggregate Offering Amount Associated with Fee Offset Claimed | | |
Fee
Paid with Fee Offset Source | |
| Fees Offset Claims | |
Cadiz Inc. | |
S-3 | |
333-257159 | |
June 17, 2021 | |
| — | | |
$ | 1,151.12 | | |
Unallocated (Universal) Shelf | |
Common Stock, par value $0.01 per
share, Preferred Stock, par value $0.01 per share, Depositary Shares, Debt Securities, Warrants, Subscription Rights, Units | |
| (5) |
$ | 9,028,897.62 | | |
| — | |
| (1) | The securities registered hereunder include such indeterminate
number of (a) shares of common stock, (b) shares of preferred stock, (c) debt securities, (d) depositary shares, (e) warrants to purchase
common stock, preferred stock, depositary shares or debt securities of the registrant, (f) subscription rights to purchase common stock,
preferred stock or depositary shares of the registrant, and (g) units consisting of some or all of these securities, as may be sold from
time to time by the registrant. There are also being registered hereunder an indeterminate number of shares of common stock and preferred
stock as shall be issuable upon conversion, exchange or exercise of any securities that provide for such issuance. |
| (2) | The proposed maximum aggregate offering price per class of
security will be determined, from time to time, by the registrant in connection with the issuance by the registrant of the securities
registered hereunder and is not specified as to each class of security pursuant to Instruction 2.A.iii.b. to the Calculation of Filing
Fee Tables and Related Disclosure on Item 16(b) of Form S-3 under the Securities Act of 1933, as amended (the “Securities Act”).
Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities,
or that are issued in units. |
| (3) | Estimated solely for the purpose of calculating the registration
fee. Subject to Rule 462(b) under the Securities Act, the aggregate initial offering price of common stock issued by the registrant pursuant
to this registration statement will not exceed $200,000,000. |
| (5) | On June 17, 2021, the Registrant filed a registration statement on Form S-3 (File No. 333-257159, the “2021 Registration Statement”).
The 2021 Registration Statement was declared effective on June 25, 2021, and identified and registered an aggregate principal amount of
$205,000,000 of an indeterminate amount of securities to be offered by the Registrant from time to time. The Registrant paid a contemporaneous
fee payment of $26,136.00. Pursuant to Rule 457(p) under the Securities Act, the Registrant hereby offsets the total registration fee
due under this registration statement by $1,151.12, representing the contemporaneous fee payment of $9,028,897.62 in connection with unsold
securities under the 2021 Registration Statement. The Registrant hereby confirms that any offerings of the unsold securities associated
with the claimed fee offset pursuant to Rule 457(p) have been completed or terminated. |
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