As filed with the Securities and Exchange Commission
on July 26, 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
CYTOSORBENTS CORPORATION
(Exact Name of Registrant as Specified in Its
Charter)
Delaware |
|
98-0373793 |
(State
or Other Jurisdiction of Incorporation or
Organization) |
|
(I.R.S.
Employer Identification No.) |
305 College Road East
Princeton, New Jersey 08540
(732) 329-8885
(Address, Including Zip Code, and Telephone
Number, Including Area Code,
of
Registrant’s Principal Executive Offices)
Phillip P. Chan, MD
Chief Executive Officer
CytoSorbents Corporation
305 College Road East
Princeton, New Jersey 08540
(732) 329-8885
(Name, Address, Including Zip Code,
and Telephone Number,
Including Area Code, of Agent For Service)
Copies to:
David C. Schwartz
Benjamin Stein
Morgan Lewis & Bockius LLP
502 Carnegie Center, Suite 201
Princeton, New Jersey 08540
(609) 919-6600
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement,
as determined by market conditions.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please
check the following box. ¨
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check
the following box. x
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act registration statement number of the earlier effective registration statement
for the same offering. ¨
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box
and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ¨
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 |
x |
Smaller reporting company
|
x |
|
|
Emerging growth company
|
¨ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
The registrant hereby amends this registration
statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which
specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission, acting pursuant to
said Section 8(a), may determine.
The information
in this prospectus is not complete and may be changed or supplemented. No securities described in this prospectus can be sold until the
registration statement that we filed to cover the securities has become effective under the rules of the Securities and Exchange Commission.
This prospectus is not an offer to sell the securities, nor is it a solicitation of an offer to buy the securities in any state where
an offer or sale of the securities is not permitted.
SUBJECT TO COMPLETION, DATED JULY
26, 2024
PROSPECTUS
![](https://www.sec.gov/Archives/edgar/data/1175151/000110465924083067/tm2420077d1_s3img001.jpg)
$150,000,000
Common Stock, Preferred Stock,
Debt Securities, Warrants and Units
We may offer from time to
time in one or more offerings up to an aggregate of $150,000,000 of the common stock, preferred stock, debt securities, warrants or units
described in this prospectus, separately or together in one or more combinations. The preferred stock, debt securities, and warrants
may be convertible into or exercisable or exchangeable for common stock or preferred stock or other securities, as identified in the
applicable prospectus supplement.
This prospectus provides
a general description of the securities we may offer. Each time we offer securities pursuant to this prospectus, we will provide specific
terms of the securities offered in a supplement to this prospectus. We may also authorize one or more free writing prospectuses to be
provided to you in connection with these offerings. The prospectus supplement and any related free writing prospectus may add, update
or change information contained in this prospectus. You should carefully read this prospectus, the applicable prospectus supplement and
any related free writing prospectus, as well as the documents incorporated by reference herein and therein, before you invest in any
of our securities. This prospectus may not be used to sell the securities unless accompanied by a prospectus supplement.
We may offer and sell the
securities through underwriters, dealers or agents, or directly to purchasers, or through a combination of these methods. See “Plan
of Distribution” beginning on page 29 of this prospectus. If any agents or underwriters are involved in the sale of any securities
with respect to which this prospectus is being delivered, the names of such agents or underwriters and any applicable fees, commissions,
discounts or over-allotment options will be set forth in a prospectus supplement. 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 a prospectus supplement.
We are a “smaller reporting
company” under federal securities laws and as such, have elected to comply with reduced public company reporting requirements for
this prospectus and the documents incorporated by reference herein and may elect to comply with reduced public company reporting requirements
in future filings. See “Summary—Implications of Being a Smaller Reporting Company.”
Our common stock is listed
on the Nasdaq Capital Market under the symbol “CTSO.” The last reported sale price of our common stock on the Nasdaq Capital
Market on July 25, 2024 was $1.03 per share.
As of July 25, 2024,
the aggregate market value of our outstanding common stock held by non-affiliates, also known as our public float, is $59,111,703, based
on 52,778,307 shares of our outstanding common stock held by non-affiliates as of June 30, 2024 and a price of $1.12 per share,
the closing price of our common stock on July 16, 2024. Pursuant to General Instruction I.B.6 of Form S-3, in no event will
we sell securities in a public offering with a value of more than one-third of our public float in any 12-month period, so long as our
public float is less than $75,000,000. As of the date of this prospectus, we have not offered and sold any shares of our common stock
pursuant to General Instruction I.B.6 to Form S-3 during the prior 12 calendar month period that ends on and includes the date hereof.
Investing in our securities
involves significant risks. You should carefully read this prospectus, the applicable prospectus supplement and any related free writing
prospectus, as well as the documents incorporated by reference herein and therein, before you invest in any of our securities. See “Risk
Factors” beginning on page 5 of this prospectus.
Neither the Securities
and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus
is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2024
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of
a registration statement that we have filed with the Securities and Exchange Commission (the “SEC”) using a “shelf”
registration process under the Securities Act of 1933, as amended (the “Securities Act”). Under this shelf registration process,
we may offer and sell, from time to time, any combination of the securities described in this prospectus in one or more offerings up
to a total dollar amount of $150,000,000.
This prospectus provides
you with a general description of the securities we may offer. Each time we sell any type of securities under this prospectus, we will,
to the extent required by law, provide a prospectus supplement that will contain specific information about the terms of such offering.
We may also authorize one or more free writing prospectuses to be provided to you in connection with such offering. The prospectus supplement
and any related free writing prospectus may add, update or change information contained in this prospectus. 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. You should carefully read this prospectus, the applicable prospectus
supplement, and any applicable free writing prospectus, as well as the information and documents incorporated herein and therein by reference
and the additional information under the heading “Where You Can Find More Information,” before making an investment decision.
We have not authorized any
dealer, salesman or other person to give any information or to make any representation other than those contained in, or incorporated
by reference into, this prospectus and the applicable prospectus supplement, and any free writing prospectus we have authorized for use
in connection with a specific offering. You must not rely upon any other information or representation.
This prospectus and any accompanying
supplement to this prospectus do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the
registered securities to which they relate, nor do this prospectus and any accompanying supplement to this prospectus constitute an offer
to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer
or solicitation in such jurisdiction. You should not assume that the information contained in this prospectus, any accompanying prospectus
supplement and any applicable free writing prospectus is accurate on any date subsequent to the date set forth on the front of the document
or that any information we have incorporated by reference is correct on any date subsequent to the date of the document incorporated
by reference, even though this prospectus, any accompanying prospectus supplement or any applicable free writing prospectus is delivered,
or securities sold, on a later date.
This prospectus may not be
used by us to consummate sales of our securities unless it is accompanied by a prospectus supplement. To the extent there are inconsistencies
between any prospectus supplement, this prospectus and any documents incorporated by reference, the document with the most recent date
will control.
The representations, warranties
and covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated by reference in the prospectus
or any prospectus summary were made solely for the benefit of the parties to such agreement, including, in some cases, for the purpose
of allocating risk among the parties to such agreements, and should not be deemed to be a representation, warranty or covenant to you.
Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly, such representations,
warranties and covenants should not be relied on as accurately representing the current state of our affairs.
This prospectus includes
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 some of the documents referred
to herein have been filed, will be filed or are 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 under the heading “Where You Can Find More Information.”
This prospectus includes
our trademarks and trade names, such as “CytoSorb,” “CytoSorb XL,” “ECOS-300CY,” “BetaSorb,”
“ContrastSorb,” “DrugSorb,” “DrugSorb-ATR,” “HemoDefend-RBC,” “HemoDefend-BGA,
“K+ontrol” and “VetResQ,” which are protected under applicable intellectual property laws and are
the property of CytoSorbents Corporation and its subsidiaries. This prospectus also contains the trademarks, trade names and service
marks of other companies, which are the property of their respective owners. Solely for convenience, trademarks, trade names and service
marks referred to in this prospectus may appear without the ™, ®, or SM symbols, but such references are not intended to indicate,
in any way, that we will not assert, to the fullest extent under applicable law, our rights or the rights of the applicable licensor
to these trademarks, trade names and service marks. We do not intend our use or display of other parties’ trademarks, trade names
or service marks to imply, and such use or display should not be construed to imply, a relationship with, or endorsement or sponsorship
of us by, these other parties.
Unless the context otherwise
requires, references in this prospectus to “we,” “us,” “our,” or the “Company” refer
to CytoSorbents Corporation, a Delaware corporation, and its subsidiaries.
PROSPECTUS SUMMARY
This summary highlights
selected information contained elsewhere in this prospectus or incorporated by reference into this prospectus. This summary does not
contain all the information that you should consider before investing in our securities. Before investing in our securities, you should
carefully read this entire prospectus, the applicable prospectus supplement and any related free writing prospectus, including the information
under the caption “Risk Factors” herein and the applicable prospectus supplement and under similar headings in the other
documents that are incorporated by reference into this prospectus, including our most recent Annual Report on Form 10-K and our
most recent Quarterly Report on Form 10-Q on file with the SEC and any amendments thereto. You should also carefully read the other
information incorporated by reference into this prospectus, including our financial statements and the related notes, and the exhibits
to the registration statement of which this prospectus is a part.
We
are a leader in the treatment of life-threatening conditions in the intensive care (“ICU”) and cardiac surgery using blood
purification via our proprietary polymer adsorption technology. We have a number of products commercialized and in development based
on this technology platform. Our flagship product, CytoSorb®, is already commercialized, and is being used to reduce deadly
uncontrolled inflammation and dangerous substances in hospitalized patients around the world, with the goal of preventing or treating
multiple organ failure, bleeding, and other potentially fatal complications. Organ failure is the cause of nearly half of all deaths
in the ICU, with little to improve clinical outcome. CytoSorb is approved in the European Union (the “EU”) as an effective
extracorporeal cytokine absorber, designed to reduce the “cytokine storm” or “cytokine release syndrome” that
could otherwise cause massive inflammation, organ failure and death in common critical illnesses such as sepsis, burn injury, trauma,
lung injury, liver failure, cytokine release syndrome due to cancer immunotherapy, and pancreatitis. These are conditions where the mortality
is extremely high, yet few to no effective treatments exist. In May 2018, we received a label expansion for CytoSorb covering use
of the device for the removal of bilirubin and myoglobin in the treatment of liver disease and trauma, respectively. In January 2020,
we received CE-Mark label expansion for CytoSorb covering the use of the device for the removal of the anti-platelet agent, ticagrelor,
in patients undergoing surgery requiring cardiopulmonary bypass. In April 2020, the U.S. Food and Drug Administration (“FDA”)
granted Breakthrough Device Designation to CytoSorb for the removal of ticagrelor in a cardiopulmonary bypass circuit during emergent
and urgent cardiothoracic surgery and we announced that the FDA had granted Emergency Use Authorization of CytoSorb for use in critically
ill patients with COVID-19 infection and respiratory failure. In May 2020, we received a CE-Mark label expansion for CytoSorb for
the removal of rivaroxaban during cardiothoracic surgery requiring cardiopulmonary bypass. In August 2021, we announced that we
were granted a second Breakthrough Device Designation for our DrugSorb-ATR Antithrombotic Removal System by the FDA to remove the direct
oral anticoagulants, rivaroxaban and apixaban. CytoSorb is used during and after cardiac surgery to remove inflammatory mediators, such
as cytokines, activated complement, and free hemoglobin that can lead to post-operative complications such as acute kidney injury, lung
injury, shock, and stroke. We believe CytoSorb has the potential to be used in many other inflammatory conditions, including the treatment
of autoimmune disease flares, cytokine release syndrome in cancer immunotherapy, and other applications in cancer, such as cancer cachexia.
CytoSorb has been used globally in more than 237,000 human treatments to date in critical illnesses and in cardiac surgery.
We
have completed a pivotal randomized, controlled clinical trial in the U.S. and Canada, called the STAR-T trial, evaluating the use of
DrugSorb-ATR during cardiothoracic surgery to prevent or reduce perioperative bleeding complications in patients on the antithrombotic
drug Brilinta® (ticagrelor, AstraZeneca) in pursuit of FDA and Health Canada marketing approval. We believe that the safety
and efficacy results of the STAR-T trial will support regulatory submissions for marketing approval by the FDA and Health Canada.
We are focusing on three
key objectives that we believe are the key to driving sustainable, long-term growth:
| · | Open
the U.S. and Canadian markets by obtaining FDA and Health Canada marketing approval for DrugSorb™-ATR
to reduce the perioperative bleeding risk caused by Brilinta® and in the future,
potentially other blood thinning drugs, in patients undergoing cardiothoracic surgery (see
Clinical Studies Update) |
| · | Grow
core CytoSorb sales to profitability, driven by numerous internal initiatives |
| · | Reduce
cash burn and maintain tight control over expenses. |
Our purification technologies
are based on biocompatible, highly porous polymer beads that can actively remove toxic substances from blood and other bodily fluids
by pore capture and surface adsorption. The technology is protected by 21 issued U.S. patents and multiple international patents, with
applications pending both in the U.S. and internationally. We have numerous other product candidates under development based upon this
unique blood purification technology, including CytoSorb XL, K+ontrol, HemoDefend-RBC, HemoDefend-BGA, ContrastSorb, DrugSorb,
DrugSorb-ATR and others.
Our proprietary polymer
technologies form the basis of a broad technology portfolio. Some of our products and product candidates include:
| · | CytoSorb
— an extracorporeal hemoperfusion cartridge approved in the EU for cytokine, bilirubin,
myoglobin, and antithrombotic drug removal, with the goal of reducing deadly inflammation
and toxic substances that can cause serious complications such as bleeding, organ failure,
and death. |
| · | DrugSorb-ATR
— an investigational extracorporeal antithrombotic removal system based on the same
polymer technology as CytoSorb that was evaluated in the U.S. and Canadian STAR-T pivotal
randomized, controlled trial to reduce perioperative bleeding complications in patients undergoing
cardiothoracic surgery while on the antithrombotic drug Brilinta®. |
| · | ECOS-300CY
— an adsorption cartridge approved in the E.U. for use with ex vivo organ perfusion
systems to remove cytokines and other inflammatory mediators in the organ perfusate, with
the goal of maintaining or improving solid organ function prior to transplant and improving
postoperative outcomes. In 2021, commercialization of PerSorb™ and Aferetica’s
PerLife™ ex vivo organ perfusion system commenced in Italy. |
| · | CytoSorb
XL — an intended next generation successor to CytoSorb currently in advanced pre-clinical
testing designed to reduce a broad range of cytokines and inflammatory mediators, including
lipopolysaccharide endotoxin, from blood. |
| · | VetResQ
— a broad spectrum blood purification adsorber designed to help treat deadly inflammation
and toxic injury in animals with critical illnesses such as septic shock, toxic shock syndrome,
severe systemic inflammation, toxin-mediated diseases, pancreatitis, trauma, liver failure,
and drug intoxication. VetResQ is being commercialized in the United States. |
| · | HemoDefend-RBC—a
development-stage blood purification technology designed to remove non-infectious contaminants
in blood transfusion products, with the goal of reducing transfusion reactions and improving
the quality and safety of blood. |
| · | HemoDefend-BGA—a
development-stage purification technology that can remove anti-A and anti-B antibodies from
plasma and whole blood, to enable “universal plasma” and safer whole blood transfusions,
respectively. |
| · | K+ontrol
—a development-stage blood purification technology designed to reduce excessive levels
of potassium in the blood that can be fatal in severe hyperkalemia. |
| · | ContrastSorb—a
development-stage extracorporeal hemoperfusion cartridge designed to remove IV contrast from
the blood of high-risk patients undergoing radiological imaging with contrast, or interventional
radiology procedures such as cardiac catheterization and angioplasty. The goal of ContrastSorb
is to prevent contrast-induced nephropathy. |
Corporate Information
Our executive offices are
located at 305 College Road East, Princeton, New Jersey 08540, and our telephone number is (732) 329-8885. Our website address is http://www.cytosorbents.com.
We have included our website address as an inactive textual reference only. We are not including the information contained at http://www.cytosorbents.com,
or at any other website address, as part of, or incorporating it by reference into, this prospectus or any accompanying prospectus supplement
or related free writing prospectus.
Implications of Being a Smaller Reporting
Company
We are a “smaller reporting
company,” as defined in Regulation S-K. As a result, we may take advantage of certain of the scaled disclosures available to smaller
reporting companies. Specifically, as a smaller reporting company, we may choose to present only the two most recent fiscal years of
audited financial statements in our Annual Report on Form 10-K and have reduced disclosure obligations regarding executive compensation.
We will remain a smaller reporting company if we have (i) less than $250 million in market value of our shares held by non-affiliates
as of the last business day of our second fiscal quarter or (ii) less than $100 million of annual revenues in our most recent fiscal
year completed before the last business day of our second fiscal quarter and less than $700 million in market value of our shares held
by non-affiliates as of the last business day of our second fiscal quarter.
RISK FACTORS
Investing in our securities
involves a high degree of risk. Before making an investment decision, you should carefully consider these risks as well as other information
we include or incorporate by reference in this prospectus. In particular, you should carefully consider the information under the heading
“Risk Factors,” as well as the factors listed under the heading “Special Note Regarding Forward-Looking Statements,”
in each case contained in our Annual Report on Form 10-K for our most recent fiscal year, in any Quarterly Reports on Form 10-Q
that have been filed since our most recent Annual Report on Form 10-K and in any other documents that we file with the SEC which
is incorporated by reference in this prospectus. New risks may emerge in the future at any time, and we cannot predict such risks or
estimate the extent to which they may affect our financial condition or performance. The prospectus supplement applicable to a specific
offering may contain a discussion of additional risks applicable to an investment in us and our securities we are offering under that
prospectus supplement. Each of the risks described could result in a decrease in the value of the securities and your investment therein.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, any accompanying
prospectus supplement or related free writing prospectus, and the documents incorporated by reference herein and therein may contain
“forward-looking statements” within the meaning of the safe harbor provisions of Section 27A of the Securities Act of
1933, as amended, Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the Private
Securities Litigation Reform Act of 1995. These forward-looking statements only provide our current expectations or forecasts of future
events and financial performance and may be identified by the use of forward-looking terminology, including the terms “believes,”
“estimates,” “anticipates,” “expects,” “plans,” “intends,” “may,”
“will,” “should,” “could,” “predicts,” or the negative thereof, or other variations or
comparable terminology, though the absence of these words does not necessarily mean that a statement is not forward-looking. Forward-looking
statements include all matters that are not historical facts and include, without limitation, statements concerning possible or assumed
future results of our operations; business strategies; future cash flows; financing plans; plans and objectives of management; any other
statements regarding future operations, future cash needs, business plans and future financial results, and any other statements that
are not historical facts. You should be aware that the forward-looking statements included herein represent management’s current
judgment and expectations, but our actual results, events and performance could differ materially from those in the forward-looking statements.
You should read carefully
the risks described in the section entitled “Risk Factors” beginning on page 5 of this prospectus and those contained
in our Annual Report on Form 10-K for our most recent fiscal year, in any Quarterly Reports on Form 10-Q that have been filed
since our most recent Annual Report on Form 10-K and in any other documents that we file with the SEC under the Exchange Act, each
of which is incorporated by reference in this prospectus. and in any accompanying prospectus supplement or related free writing prospectus,
together with all information incorporated by reference herein and therein, to better understand the significant risks and uncertainties
inherent in our business and underlying any forward-looking statements. As a result of these risks, actual results could differ materially
and adversely from those anticipated or implied in the forward-looking statements in this prospectus or in any accompanying prospectus
supplement or related free writing prospectus, or incorporated by reference herein and therein, and you should not place undue reliance
on any forward-looking statements.
Any forward-looking statements
that we make in this prospectus speak only as of the date of such statements and we undertake no obligation to publicly update any forward-looking
statements or to publicly announce revisions to any of the forward-looking statements, whether as a result of new information, future
events or otherwise.
USE OF PROCEEDS
Unless the applicable
prospectus supplement states otherwise, we anticipate that the net proceeds from the sale of our securities will be used for general
corporate purposes, that include, but are not limited to, funding clinical studies in the United States and abroad, supporting
manufacturing, supporting our sales and marketing efforts, repaying debt, and further developing our products, and we will retain
broad discretion with respect to the allocation thereof. Our preexisting shelf registration statement expires in July 2024. We
believe it is good corporate practice to have an effective shelf registration statement on file with the SEC to preserve the
flexibility to raise capital if and when needed. Additional information on the use of net proceeds from the sale of the securities
that we may offer from time to time by this prospectus may be set forth in the applicable prospectus supplement relating to a
particular offering.
DESCRIPTION OF THE SECURITIES WE MAY OFFER
The descriptions of the securities
contained in this prospectus summarize the material terms and provisions of the various types of securities that we may offer. We will
describe in the applicable prospectus supplement relating to any securities the particular terms of the securities offered by that prospectus
supplement. If we so indicate in the applicable prospectus supplement, the terms of the securities may differ from the terms we have
summarized below. We will also include in the prospectus supplement information, where applicable, about material U.S. federal income
tax considerations relating to the securities, and the securities exchange, if any, on which the securities will be listed. In this prospectus,
we refer to the common stock, preferred stock, debt securities, warrants or units, or any combination of the foregoing securities to
be sold by us in a primary offering collectively as “securities.”
DESCRIPTION OF CAPITAL STOCK
The following description
of our common stock and preferred stock, together with the additional information we include in the applicable prospectus supplement,
summarizes the material terms and provisions of the common stock and preferred stock that we may offer under this prospectus. It may
not contain all the information that is important to you. For the complete terms of our common stock and preferred stock, please refer
to our Second Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”) and Second Amended and
Restated Bylaws (the “Bylaws”), which are incorporated by reference into the registration statement which includes this prospectus.
The Delaware General Corporation Law (the “DGCL”) may also affect the terms of these securities.
General
The total number of shares
of capital stock that we have authority to issue is 105,000,000, consisting of (i) 100,000,000 shares of common stock, $0.001 par
value per share, and (ii) 5,000,000 shares of preferred stock, par value per share $0.001. The outstanding shares of our Common
Stock are fully paid and nonassessable.
Common Stock
Voting.
For all matters submitted to a vote of stockholders, each holder of our Common Stock is entitled to one vote for each share registered
in such holder’s name. Except as may be required by law and in connection with some significant actions, such as mergers, consolidations,
or amendments to our Certificate of Incorporation that affect the rights of stockholders, holders of our Common Stock vote together as
a single class. Generally, the election of members of our Board of Directors (the “Board”) is determined by the vote of the
majority of the votes cast by stockholders with respect to that director’s election. However, in a Contested Election (as defined
in our Bylaws), directors of the Board are elected by a plurality of the votes cast by the stockholders entitled to vote (and not by
majority vote).
Dividends.
Subject to preferential dividend rights of any then outstanding preferred stock, the holders of Common Stock are entitled to receive
dividends, as and when declared by our Board.
Liquidation.
In the event we are liquidated, dissolved or our affairs are wound up, after we pay or make adequate provision for all of our known debts
and liabilities, each holder of our Common Stock will be entitled to receive all of our assets available for distribution to our stockholders,
subject to any preferential or other rights of any then outstanding preferred stock.
Other
Rights and Restrictions. Subject to the preferential rights of any other class or series of stock, all shares of our Common
Stock have equal dividend, distribution, liquidation and other rights, and have no preference, appraisal or exchange rights, except for
any appraisal rights provided by Delaware law. Furthermore, holders of our Common Stock have no conversion, sinking fund or redemption
rights, or preemptive rights to subscribe for any of our securities. Our Certificate of Incorporation and Bylaws do not restrict the
ability of a holder of our Common Stock to transfer such holder’s shares of our Common Stock.
The rights, powers, preferences
and privileges of holders of our Common Stock are subject to, and may be adversely affected by, the rights of holders of shares of any
series of preferred stock which we may designate and issue in the future.
Listing.
Our common stock is listed on the Nasdaq Capital Market under the symbol “CTSO.”
Transfer
Agent and Registrar. The transfer agent for our common stock is Equiniti Trust Company, LLC.
Preferred Stock
Under our Certificate of
Incorporation, we have the authority to issue preferred stock from time to time in one or more series, with such distinctive serial designations
as shall be stated and expressed in the resolution or resolutions providing for the issue of such shares from time to time adopted by
our Board. The resolutions of the Board providing for the issue of shares of each particular series of preferred stock may fix the annual
rate or rates for dividends for the particular series, the dividend payment dates for the particular series and the date from which dividends
on all shares of such series issued prior to the record date for the first dividend payment date shall be cumulative, the redemption
price or prices for the particular series, the rights, if any, of holders of the shares of the particular series to convert the same
into shares of any other series or other securities of the Company or of any other corporation, with any provisions for the subsequent
adjustment of such conversion rights, and to classify or reclassify any unissued preferred stock by fixing or altering from time to time
any of the foregoing rights, privileges and qualifications.
All of the preferred stock
of any one series shall be identical with each other in all respects, except that shares of any one series issued at different times
may differ as to the dates from which dividends thereon shall be cumulative; and all preferred stock shall be of equal rank, regardless
of series, and shall be identical in all respects except as to the particulars fixed by the Board as provided in the Certificate of Incorporation.
When we issue shares of our preferred stock, the shares will be fully paid and nonassessable and, unless specified in the applicable
prospectus supplement, will not have or be subject to any rights of first refusal or similar rights.
The DGCL provides that the
holders of preferred stock will have the right to vote separately as a class on any proposal involving fundamental changes in the rights
of holders of that preferred stock. This right is in addition to any voting rights that may be provided for in the applicable certificate
of designation.
Certain Effects of Authorized but Unissued
Stock
We have shares of common
stock and preferred stock available for future issuance without stockholder approval. We may issue these additional shares for a variety
of corporate purposes, including future public offerings to raise additional capital or facilitate corporate acquisitions or for payment
as a dividend on our capital stock. The existence of unissued and unreserved common stock and preferred stock may enable our Board of
Directors to issue shares to persons friendly to current management or to issue preferred stock with terms that could render more difficult
or discourage a third-party attempt to obtain control of us by means of a merger, tender offer, proxy contest or otherwise, thereby protecting
the continuity of our management. In addition, if we issue preferred stock, the issuance could adversely affect the voting power of holders
of common stock and the likelihood that such holders will receive dividend payments and payments upon liquidation.
Delaware Law and Certificate of Incorporation
and Bylaws Provisions
Board
of Directors. Our Bylaws provide that:
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subject to the rights of
the holders of any series of preferred stock then outstanding, any directors, or the entire Board of Directors, may be removed from
office at any time, with or without cause, by the affirmative vote of the holders of a majority of the voting power of all of the
outstanding shares of capital stock entitled to vote generally in the election of directors, voting together as a single class; and |
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vacancies in the Board
of Directors resulting from such removal may be filled by a majority of the directors then in office, though less than a quorum,
or by the sole remaining director. Directors so chosen shall hold office until the next annual meeting of stockholders at which the
term of office of the class to which they have been elected expires. |
These provisions could discourage,
delay or prevent a change in control of our company or an acquisition of our company at a price which many stockholders may find attractive.
The existence of these provisions could limit the price that investors might be willing to pay in the future for shares of our common
stock. These provisions may also have the effect of discouraging a third party from initiating a proxy contest, making a tender offer
or attempting to change the composition or policies of our Board of Directors.
Stockholder
Action; Special Meeting of Stockholders. Our Certificate of Incorporation and Bylaws also provide that:
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stockholder action may
be taken only at a duly called and convened annual or special meeting of stockholders and then only if properly brought before the
meeting; |
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stockholder action may
not be taken by written action in lieu of a meeting; |
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· |
special meetings of stockholders
may be called only by our Board, the Chairman of our Board or by our Chief Executive Officer; and |
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in order for any matter
to be considered “properly brought” before a meeting, a stockholder must comply with requirements regarding specified
information and advance notice to us. |
These provisions could delay,
until the next stockholders’ meeting, actions which are favored by the holders of a majority of our outstanding voting securities.
These provisions may also discourage another person or entity from making a tender offer for our common stock, because a person or entity,
even if it acquired a majority of our outstanding voting securities, would be able to take action as a stockholder only at a duly called
stockholders’ meeting, and not by written consent.
Indemnification.
Our Certificate of Incorporation provides that we shall, to the fullest extent permitted by, and in accordance with the provisions of,
the DGCL, indemnify each of our directors or officers or employees against expenses (including attorneys’ fees), judgments, taxes,
fines and amounts paid in settlement, incurred by him in connection with, and shall advance expenses (including attorneys’ fees)
incurred by him in defending, any threatened, pending or completed action, suit or proceeding (whether civil, criminal, administrative
or investigative) to which such director, officer or employee is, or is threatened to be made, a party by reason of the fact that such
director, officer or employee is or was a director or officer or employee of ours, or is or was serving at the request of us as a director,
officer, partner, employee or agent of another domestic or foreign corporation, partnership, joint venture, trust or other enterprise.
Advancement of expenses shall be made upon receipt of an undertaking, with such security, if any, as the Board of Directors or stockholders
may reasonably require, by or on behalf of the person seeking indemnification to repay amounts advanced if it shall ultimately be determined
that he or she is not entitled to be indemnified by us as authorized therein.
Delaware Anti-Takeover Law
We are subject to the provisions of Section 203
of the DGCL. Section 203 prohibits publicly held Delaware corporations from engaging in a “business combination” with
an “interested stockholder” for a period of three years after the date of the transaction in which the person became an interested
stockholder, unless the business combination is approved in a prescribed manner. A “business combination” includes mergers,
asset sales and other transactions resulting in a financial benefit to the interested stockholder. Subject to certain exceptions, an
“interested stockholder” is a person who, together with affiliates and associates, owns, or within three years did own, 15%
or more of the corporation’s voting stock. These provisions could have the effect of delaying, deferring or preventing a change
of control of our company or reducing the price that certain investors might be willing to pay in the future for shares of our stock.
DESCRIPTION OF DEBT SECURITIES
We may issue from time to
time, in one or more offerings, senior or subordinated debt securities covered by this prospectus. When we offer to sell a particular
series of debt securities, we will describe the specific terms of the series in a supplement to this prospectus.
As required by Federal law
for all bonds and notes of companies that are publicly offered, any debt securities we issue will be governed by a document called an
“indenture.” We have summarized the general features of the debt securities to be governed by the indenture. The summary
is not complete. An indenture is a contract between us and a financial institution acting as trustee on behalf of the holders of the
debt securities, and is subject to and governed by the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”).
The trustee has two main roles. First, the trustee can enforce holders’ rights against us if we default. There are some limitations
on the extent to which the trustee acts on holders’ behalf, described in the second paragraph under “Description of Debt
Securities — Events of Default.” Second, the trustee performs certain administrative duties, such as sending
interest and principal payments to holders.
Because this section is a
summary, it does not describe every aspect of any debt securities we may issue or the indenture governing any such debt securities. Particular
terms of any debt securities we offer will be described in the prospectus supplement relating to such debt securities, and we urge you
to read the applicable executed indenture, which will be filed with the SEC at the time of any offering of debt securities, because it,
and not this description, will define the rights of holders of such debt securities.
A prospectus supplement will
describe the particular terms of any series of debt securities we may issue, including some or all of the following:
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the designation or title
of the series of debt securities; |
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· |
the total principal amount
of the series of debt securities, the denominations in which the offered debt securities will be issued and whether the offering
may be reopened for additional securities of that series and on what terms; |
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the percentage of the principal
amount at which the series of debt securities will be offered; |
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the date or dates on which
principal will be payable; |
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the rate or rates (which
may be either fixed or variable) and/or the method of determining such rate or rates of interest, if any; |
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the date or dates from
which any interest will accrue, or the method of determining such date or dates, and the date or dates on which any interest will
be payable; |
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the terms for redemption,
extension or early repayment, if any; |
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the currencies in which
the series of debt securities are issued and payable; |
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whether the amount of payments
of principal, interest or premium, if any, on a series of debt securities will be determined with reference to an index, formula
or other method and how these amounts will be determined; |
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the place or places of
payment, transfer, conversion and/or exchange of the debt securities; |
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the provision for any sinking
fund; |
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any restrictive covenants; |
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whether the series of debt
securities are issuable in certificated form ; |
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any provisions for legal
defeasance or covenant defeasance; |
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whether
and under what circumstances we will pay additional amounts in respect of any tax, assessment or governmental charge and, if so,
whether we will have the option to redeem the debt securities rather than pay the additional amounts (and the terms of this option); |
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any provisions
for convertibility or exchangeability of the debt securities into or for any other securities; |
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whether
the debt securities are subject to subordination and the terms of such subordination; |
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any listing
of the debt securities on any securities exchange; |
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whether
the issuance of the debt securities may limit the incurrence of additional debt; |
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if applicable,
a discussion of material United States federal income tax considerations, including those related to original issue discount, if
applicable; and |
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any other
material terms. |
The debt securities may be
secured or unsecured obligations. Unless the prospectus supplement states otherwise, principal, interest and premium, if any, will be
paid by us in immediately available funds.
General
The indenture may provide
that any debt securities proposed to be sold under this prospectus and the applicable prospectus supplement relating to such debt securities
(“offered debt securities”) and any debt securities issuable upon conversion or exchange of other offered securities (“underlying
debt securities”) may be issued under the indenture in one or more series.
For purposes of this prospectus,
any reference to the payment of principal of, or interest or premium, if any, on, debt securities will include additional amounts if
required by the terms of the debt securities.
Debt securities issued under
an indenture, when a single trustee is acting for all debt securities issued under the indenture, are called the “indenture securities.”
The indenture may also provide that there may be more than one trustee thereunder, each with respect to one or more different series
of securities issued thereunder. See “Description of Debt Securities — Resignation of Trustee” below.
At a time when two or more trustees are acting under an indenture, each with respect to only certain series, the term “indenture
securities” means the one or more series of debt securities with respect to which each respective trustee is acting. In the event
that there is more than one trustee under an indenture, the powers and trust obligations of each trustee described in this prospectus
will extend only to the one or more series of indenture securities for which it is trustee. If two or more trustees are acting under
an indenture, then the indenture securities for which each trustee is acting would be treated as if issued under separate indentures.
We refer you to the applicable
prospectus supplement relating to any debt securities we may issue from time to time for information with respect to any deletions from,
modifications of or additions to the Events of Default or covenants that are described below, including any addition of a covenant or
other provision providing event risk or similar protection, that will be applicable with respect to such debt securities.
We have the ability to issue
indenture securities with terms different from those of indenture securities previously issued and, without the consent of the holders
thereof, to reopen a previous issue of a series of indenture securities and issue additional indenture securities of that series unless
the reopening was restricted when that series was created.
Conversion and Exchange
If any debt securities are
convertible into or exchangeable for other securities, the related prospectus supplement will explain the terms and conditions of the
conversion or exchange, including the conversion price or exchange ratio (or the calculation method), the conversion or exchange period
(or how the period will be determined), if conversion or exchange will be mandatory or at the option of the holder or us, provisions
for adjusting the conversion price or the exchange ratio and provisions affecting conversion or exchange in the event of the redemption
of the underlying debt securities. These terms may also include provisions under which the number or amount of other securities to be
received by the holders of the debt securities upon conversion or exchange would be calculated according to the market price of the other
securities as of a time stated in the prospectus supplement.
Payment and Paying Agents
We will pay interest to the
person listed in the applicable trustee’s records as the owner of the debt security at the close of business on a particular day
in advance of each due date for interest, even if that person no longer owns the debt security on the interest due date. That day, often
approximately two weeks in advance of the interest due date, is called the “record date.” Because we will pay all the interest
for an interest period to the holders on the record date, holders buying and selling debt securities must work out between themselves
the appropriate purchase price. The most common manner is to adjust the sales price of the debt securities to prorate interest fairly
between buyer and seller based on their respective ownership periods within the particular interest period. This prorated interest amount
is called “accrued interest.”
Events of Default
Holders of debt securities
of any series will have rights if an Event of Default occurs in respect of the debt securities of such series and is not cured, as described
later in this subsection. The term “Event of Default” in respect of the debt securities of any series means any of the following:
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we do
not pay the principal of, or any premium on, a debt security of the series on its due date; |
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· |
we do
not pay interest on a debt security of the series within 30 days of its due date; |
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we remain
in breach of a covenant in respect of debt securities of the series for 60 days after we receive a written notice of default
stating we are in breach. The notice must be sent by either the trustee or holders of at least 25% of the principal amount of debt
securities of the series; |
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we file
for bankruptcy or certain other events of bankruptcy, insolvency or reorganization occur; |
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any guarantee
in respect of a debt security of the series ceases to be in full force and effect or any guarantor denies or disaffirms is obligation
under its guarantee; and |
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any other
Event of Default occurs in respect of debt securities of the series described in the prospectus supplement. |
An Event of Default for a
particular series of debt securities does not necessarily constitute an Event of Default for any other series of debt securities issued
under the same or any other indenture. The trustee may withhold notice to the holders of debt securities of any default, except in the
payment of principal, premium or interest, if it considers the withholding of notice to be in the best interests of the holders.
Remedies if an Event of Default Occurs
If an Event of Default has
occurred and has not been cured or waived, the trustee or the holders of not less than 25% in principal amount of the debt securities
of the affected series may declare the entire principal amount of all the debt securities of that series to be due and immediately payable.
This is called a declaration of acceleration of maturity. A declaration of acceleration of maturity may be cancelled by the holders of
a majority in principal amount of the debt securities of the affected series if the default is cured or waived and certain other conditions
are satisfied.
Except in cases of default,
where the trustee has some special duties, the trustee typically is not required to take any action under an indenture at the request
of any holders unless the holders offer the trustee reasonable protection from expenses and liability (called an “indemnity”).
If reasonable indemnity is provided, the holders of a majority in principal amount of the outstanding debt securities of the relevant
series may direct the time, method and place of conducting any lawsuit or other formal legal action seeking any remedy available to the
trustee. The trustee may refuse to follow those directions in certain circumstances.
Before a holder is allowed
to bypass the trustee and bring its own lawsuit or other formal legal action or take other steps to enforce its rights or protect its
interests relating to any debt securities, the following must occur:
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the holder
must give the trustee written notice that an Event of Default has occurred and remains uncured; |
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the holders
of at least 25% in principal amount of all outstanding debt securities of the relevant series must make a written request that the
trustee take action because of the default and must offer reasonable indemnity to the trustee against the cost and other liabilities
of taking that action; |
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the trustee
must not have taken action for 60 days after receipt of the above notice and offer of indemnity; and |
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the holders
of a majority in principal amount of the debt securities must not have given the trustee a direction inconsistent with the above
notice during that 60-day period. |
However, a holder is entitled
at any time to bring a lawsuit for the payment of money due on its debt securities on or after the due date. Each year, we will furnish
to each trustee a written statement of certain of our officers certifying that to their knowledge we are in compliance with the indenture
and the debt securities, or else specifying any default.
Waiver of Default
The holders of a majority
in principal amount of the relevant series of debt securities may waive a default for all such series of debt securities. If this happens,
the default will be treated as if it had not occurred. No one can waive a payment default on a holder’s debt security, however,
without the holder’s approval.
Merger or Consolidation
Under the terms of an indenture,
we may be permitted to consolidate or merge with another entity. We may also be permitted to sell all or substantially all of our assets
to another entity. However, typically we may not take any of these actions unless all the following conditions are met:
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if we
do not survive such transaction or we convey, transfer or lease our properties and assets substantially as an entirety, the acquiring
company must be a corporation, limited liability company, partnership or trust, or other corporate form, organized under the laws
of any state of the United States or the District of Columbia, and such company must agree to be legally responsible for our debt
securities, and, if not already subject to the jurisdiction of any state of the United States or the District of Columbia, the new
company must submit to such jurisdiction for all purposes with respect to the debt securities and appoint an agent for service of
process; |
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alternatively,
we must be the surviving company; |
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immediately
after the transaction no Event of Default or event that would become an Event of Default will exist; |
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we must
deliver certain certificates and documents to the trustee; and |
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we must
satisfy any other requirements specified in the prospectus supplement relating to a particular series of debt securities. |
Modification or Waiver
There are three types of
changes we may make to an indenture and the debt securities issued thereunder.
Changes Requiring Approval
First, there are changes
that we may not be able to make to debt securities without specific approval of all of the affected holders. The following is a list
of the types of changes that may require specific approval:
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change
the stated maturity of the principal of or rate of interest on a debt security; |
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reduce
any amounts due on a debt security; |
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reduce
the amount of principal payable upon acceleration of the maturity of a security following a default; |
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change
the place or currency of payment on a debt security (except as otherwise described in the prospectus or prospectus supplement; |
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impair
the right of holders to sue for payment; |
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adversely
affect any right to convert or exchange a debt security in accordance with its terms; |
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reduce
the percentage of holders of debt securities whose consent is needed to modify or amend the indenture; |
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reduce
the percentage of holders of debt securities whose consent is needed to waive compliance with certain provisions of the indenture
or to waive certain defaults; |
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modify
any other aspect of the provisions of the indenture dealing with supplemental indentures, modification and waiver of past defaults,
changes to the quorum or voting requirements or the waiver of certain covenants; and |
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change
any obligation we or any guarantor may have in respect of the payment of principal, interest or other amounts. |
Changes Not Requiring
Approval
The second type of change
does not require any vote by the holders of the debt securities. This type is limited to clarifications and certain other changes that
would not adversely affect holders of the outstanding debt securities in any material respect, including the addition of covenants and
guarantees.
Changes Requiring Majority
Approval
Any other change to the indenture
and the debt securities must be approved by the holders of a majority in aggregate principal amount of all of the series issued under
the same supplemental indenture affected by the change, with all affected series voting together as one class for this purpose.
The holders of a majority
in principal amount of all of the series of debt securities issued under a supplemental indenture, voting together as one class for this
purpose, may waive our compliance obligations with respect to some of our covenants in that supplemental indenture. However, we cannot
obtain a waiver of a payment default or of any of the matters covered by the bullet points included above under “Description of
Debt Securities — Modification or Waiver — Changes Requiring Approval.”
Further Details Concerning Voting
Debt securities will not
be considered outstanding, and therefore not eligible to vote, if we have deposited or set aside in trust money for their payment or
redemption. Debt securities will also not be eligible to vote if they have been fully defeased as described later under “Description
of Debt Securities — Defeasance — Legal Defeasance.”
We generally will be entitled
to set any day as a record date for the purpose of determining the holders of outstanding indenture securities that are entitled to vote
or take other action under the indenture not more than 90 calendar days nor less than 20 calendar days prior to the proposed date of
such vote or consent.
Book-entry and other indirect
holders will need to consult their banks or brokers for information on how approval may be granted or denied if we seek to change the
indenture or the debt securities or request a waiver.
Defeasance
The following provisions
will be applicable to each series of debt securities unless we state in the applicable prospectus supplement that the provisions of covenant
defeasance and legal defeasance will not be applicable to that series.
Covenant Defeasance
We can make the deposit described
below and be released from some of the restrictive covenants in the indenture under which the particular series was issued. This is called
“covenant defeasance.” In that event, the holders would lose the protection of those restrictive covenants but would gain
the protection of having money and government securities set aside in trust to repay holders’ debt securities. If applicable, a
holder also would be released from the subordination provisions described under “Description of Debt Securities — Indenture
Provisions — Subordination” below. In order to achieve covenant defeasance, we must do the following:
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We must
deposit in trust for the benefit of all holders of such debt securities a combination of money and non-callable U.S. government notes
or bonds that will be sufficient to pay and discharge all interest, principal and any other payments on the debt securities on their
various due dates; |
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We may
be required to deliver to the trustee a legal opinion of our counsel confirming that, under current U.S. Federal income tax law,
we may make the above deposit without causing the holders to be taxed on the debt securities any differently than if we did not make
the deposit and just repaid the debt securities ourselves at maturity; and |
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We must
deliver to the trustee certain documentation stating that all conditions precedent to covenant defeasance have been complied with. |
If we accomplish covenant
defeasance, holders can still look to us for repayment of the debt securities if there were a shortfall in the trust deposit or the trustee
is prevented from making payment. In fact, if one of the remaining Events of Default occurred (such as our bankruptcy) and the debt securities
became immediately due and payable, there might be a shortfall. Depending on the event causing the default, holders may not be able to
obtain payment of the shortfall.
Legal Defeasance
As described below, we can
legally release ourselves from all payment and other obligations on the debt securities of a particular series (called “legal defeasance”),
(1) if there is a change in U.S. Federal tax law that allows us to effect the release without causing the holders to be taxed any
differently than if the release had not occurred, and (2) if we put in place the following other arrangements for holders to be
repaid:
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We must
deposit in trust for the benefit of all holders of such debt securities a combination of money and U.S. government notes or bonds
that will be sufficient to pay and discharge all interest, principal and any other payments on the debt securities on their various
due dates; |
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We may
be required to deliver to the trustee a legal opinion confirming that there has been a change in current U.S. Federal tax law or
an Internal Revenue Service ruling that allows us to make the above deposit without causing the holders to be taxed on the debt securities
any differently than if we did not make the deposit and just repaid the debt securities ourselves at maturity; and |
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We must
deliver to the trustee a legal opinion and officers’ certificate stating that all conditions precedent to legal defeasance
have been complied with. |
If we ever did accomplish
legal defeasance, as described above, holders would have to rely solely on the trust deposit for repayment of the debt securities. Holders
could not look to us for repayment in the unlikely event of any shortfall. Conversely, the trust deposit would most likely be protected
from claims of our lenders and other creditors if we ever became bankrupt or insolvent. If applicable, holders would also be released
from the subordination provisions described later under “Description of Debt Securities — Indenture Provisions — Subordination.”
Resignation of Trustee
Each trustee may resign or
be removed with respect to one or more series of indenture securities provided that a successor trustee is appointed to act with respect
to such series. In the event that two or more persons are acting as trustee with respect to different series of indenture securities
under the indenture, each of the trustees will be a trustee of a trust separate and apart from the trust administered by any other trustee.
Indenture Provisions — Subordination
Upon any distribution of
our assets upon our dissolution, winding up, liquidation or reorganization, the payment of the principal of (and premium, if any) and
interest on any indenture securities denominated as subordinated debt securities is to be subordinated to the extent provided in the
indenture in right of payment to the prior payment in full of all Senior Indebtedness (defined below), but our obligation to holders
to make payment of the principal of (and premium, if any) and interest on such subordinated debt securities will not otherwise be affected.
In addition, no payment on account of principal (or premium, if any), interest or sinking fund, if any, may be made on such subordinated
debt securities at any time unless full payment of all amounts due in respect of the principal (and premium, if any), interest and sinking
fund, if any, on Senior Indebtedness has been made or duly provided for in money or money’s worth.
In the event that, notwithstanding
the foregoing, any payment from us is received by the trustee in respect of subordinated debt securities or by the holders of any of
such subordinated debt securities before all Senior Indebtedness is paid in full, the payment or distribution must be paid over to the
holders of the Senior Indebtedness or on their behalf for application to the payment of all the Senior Indebtedness remaining unpaid
until all the Senior Indebtedness has been paid in full, after giving effect to any concurrent payment or distribution to the holders
of the Senior Indebtedness. Subject to the payment in full of all Senior Indebtedness, the holders of such subordinated debt securities
will be subrogated to the rights of the holders of the Senior Indebtedness to the extent of payments made to the holders of the Senior
Indebtedness out of the distributive share of such subordinated debt securities.
By reason of this subordination,
in the event of a distribution of our assets upon our insolvency, certain of our senior creditors may recover more, ratably, than holders
of any subordinated debt securities. The related indenture will provide that these subordination provisions will not apply to money and
securities held in trust under the defeasance provisions of the indenture.
“Senior Indebtedness”
will be defined in an applicable indenture as the principal of (and premium, if any) and unpaid interest on:
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· |
our indebtedness
(including indebtedness of others guaranteed by us), whenever created, incurred, assumed or guaranteed, for money borrowed (other
than indenture securities issued under the indenture and denominated as subordinated debt securities), unless in the instrument creating
or evidencing the same or under which the same is outstanding it is provided that this indebtedness is not senior or prior in right
of payment to the subordinated debt securities; and |
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· |
renewals,
extensions, modifications and refinancings of any of such indebtedness. |
The prospectus supplement
accompanying any series of indenture securities denominated as subordinated debt securities will set forth the approximate amount of
our Senior Indebtedness outstanding as of a recent date.
Trustee
We intend to name the indenture
trustee for each series of indenture securities in the related prospectus supplement.
Certain Considerations Relating to Foreign
Currencies
Debt securities denominated
or payable in foreign currencies may entail significant risks. These risks include the possibility of significant fluctuations in the
foreign currency markets, the imposition or modification of foreign exchange controls and potential illiquidity in the secondary market.
These risks will vary depending upon the currency or currencies involved and will be more fully described in the applicable prospectus
supplement.
DESCRIPTION OF WARRANTS
Please note that in this
section references to holders mean those who own warrants registered in their own names, on the books that we or our agent maintain for
this purpose, and not those who own beneficial interests in warrants registered in street name or in warrants issued in book-entry form
through one or more depositaries. Owners of beneficial interests in the warrants should read the section below entitled “Book-Entry
Procedures and Settlement”.
General
We may offer warrants separately
or together with our debt or equity securities.
We may issue warrants in
such amounts or in as many distinct series as we wish. This section summarizes terms of the warrants that apply generally to all series.
Most of the financial and other specific terms of your warrant will be described in the prospectus supplement. Those terms may vary from
the terms described here.
The warrants of a series
will be issued under a separate warrant agreement to be entered into between us and one or more banks or trust companies, as warrant
agent, as set forth in the prospectus supplement. A form of each warrant agreement, including a form of warrant certificate representing
each warrant, reflecting the particular terms and provisions of a series of offered warrants, will be filed with the SEC at the time
of the offering and incorporated by reference in the registration statement of which this prospectus forms a part. You can obtain a copy
of any form of warrant agreement when it has been filed by following the directions outlined in “Where You Can Find More Information;
Incorporation of Documents by Reference” or by contacting the applicable warrant agent.
The following briefly summarizes
the material provisions of the warrant agreements and the warrants. As you read this section, please remember that the specific terms
of your warrant as described in the prospectus supplement will supplement and, if applicable, may modify or replace the general terms
described in this section. You should carefully read the prospectus supplement and the more detailed provisions of the warrant agreement
and the warrant certificate, including the defined terms, for provisions that may be important to you. If there are differences between
the prospectus supplement and this prospectus, the prospectus supplement will control. Thus, the statements made in this section may
not apply to your warrant.
Types of Warrants
We may issue debt warrants
or equity warrants. A debt warrant is a warrant for the purchase of our debt securities on terms to be determined at the time of sale.
An equity warrant is a warrant for the purchase or sale of our equity securities. We may also issue warrants for the purchase or sale
of, or whose cash value is determined by reference to the performance, level or value of, one or more of the following: securities of
one or more issuers, including those issued by us and described in this prospectus or debt or equity securities issued by third parties;
a currency or currencies; a commodity or commodities; and other financial, economic or other measure or instrument, including the occurrence
or non-occurrence of any event or circumstances, or one or more indices or baskets of these items.
Information in the Prospectus Supplement
The prospectus supplement
will contain, where applicable, the following information about the warrants:
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the specific
designation and aggregate number of, and the price at which we will issue, the warrants; |
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the currency
or currency unit with which the warrants may be purchased and in which any payments due to or from the holder upon exercise must
be made; |
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the date
on which the right to exercise the warrants will begin and the date on which that right will expire or, if you may not continuously
exercise the warrants throughout that period, the specific date or dates on which you may exercise the warrants; |
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whether
the exercise price may be paid in cash, by the exchange of warrants or other securities or both, and the method of exercising the
warrants; |
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whether
the warrants will be settled by delivery of the underlying securities or other property or in cash; |
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whether
and under what circumstances we may cancel the warrants prior to their expiration date, in which case the holders will be entitled
to receive only the applicable cancellation amount, which may be either a fixed amount or an amount that varies during the term of
the warrants in accordance with a schedule or formula; |
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whether
the warrants will be issued in global or non-global form; |
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the identities
of the warrant agent, any depositaries and any paying, transfer, calculation or other agents for the warrants; |
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any securities
exchange or quotation system on which the warrants or any securities deliverable upon exercise of the warrants may be listed; |
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whether
the warrants are to be sold separately or with other securities, and if the warrants are to be sold with the securities of another
company or other companies, certain information regarding such company or companies; and |
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any other
terms of the warrants. |
No holder of a warrant will, as such, have any
rights of a holder of the debt securities, equity securities or other warrant property purchasable under or in the warrant, including
any right to receive payment thereunder.
Additional Information in the Prospectus Supplement
for Debt Warrants
In the case of debt warrants,
the prospectus supplement will contain, where appropriate, the following additional information:
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the designation,
aggregate principal amount, currency and terms of the debt securities that may be purchased upon exercise of the debt warrants; and |
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the designation,
terms and amount of debt securities, if any, to be issued together with each of the debt warrants and the date, if any, after which
the debt warrants and debt securities will be separately transferable. |
No Limit on Issuance of Warrants
The warrant agreements will
not limit the number of warrants or other securities that we may issue, except for the limitation of the number of shares authorized.
Modifications
We and the relevant warrant
agent may, without the consent of the holders, amend each warrant agreement and the terms of each issue of warrants, for the purpose
of curing any ambiguity or of correcting or supplementing any defective or inconsistent provision, or in any other manner that we may
deem necessary or desirable and that will not adversely affect the interests of the holders of the outstanding unexercised warrants in
any material respect.
We and the relevant warrant
agent also may, with the consent of the holders of at least a majority in number of the outstanding unexercised warrants affected, modify
or amend the warrant agreement and the terms of the warrants. No such modification or amendment may, without the consent of each holder
of an affected warrant:
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reduce
the amount receivable upon exercise, cancellation or expiration; |
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shorten
the period of time during which the warrants may be exercised; |
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otherwise
materially and adversely affect the exercise rights of the beneficial owners of the warrants; or |
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reduce
the percentage of outstanding warrants whose holders must consent to modification or amendment of the applicable warrant agreement
or the terms of the warrants. |
Warrant Agreements Will Not Be Qualified under
Trust Indenture Act
No warrant agreement will
be qualified as an indenture, and no warrant agent will be required to qualify as a trustee, under the Trust Indenture Act. Therefore,
holders of warrants issued under a warrant agreement will not have the protection of the Trust Indenture Act with respect to their warrants.
Enforceability of Rights by Beneficial Owner
Each warrant agent will act
solely as our agent in connection with the issuance and exercise of the applicable warrants and will not assume any obligation or relationship
of agency or trust for or with any registered holder of or owner of a beneficial interest in any warrant. A warrant agent will have no
duty or responsibility in case of any default by us under the applicable warrant agreement or warrant certificate, including any duty
or responsibility to initiate any proceedings at law or otherwise or to make any demand upon us.
Holders may, without the
consent of the applicable warrant agent, enforce by appropriate legal action, on their own behalf, their right to exercise their warrants,
to receive debt securities, in the case of debt warrants, and to receive payment, if any, for their warrants, in the case of universal
warrants.
Governing Law
Unless otherwise stated in
the prospectus supplement, the warrants and each warrant agreement will be governed by Delaware law.
DESCRIPTION OF UNITS
We may issue units comprised
of shares of common stock, shares of preferred stock, debt securities and warrants in any combination. We may issue units in such amounts
and in as many distinct series as we wish. This section outlines certain provisions of the units that we may issue. If we issue units,
they will be issued under one or more unit agreements to be entered into between us and a bank or other financial institution, as unit
agent. The information described in this section may not be complete in all respects and is qualified entirely by reference to the unit
agreement with respect to the units of any particular series. The specific terms of any series of units offered will be described in
the applicable prospectus supplement. If so described in a particular supplement, the specific terms of any series of units may differ
from the general description of terms presented below. We urge you to read any prospectus supplement related to any series of units we
may offer, as well as the complete unit agreement and unit certificate that contain the terms of the units. If we issue units, forms
of unit agreements and unit certificates relating to such units will be incorporated by reference as exhibits to the registration statement,
which includes this prospectus.
Each unit that we may issue
will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will
have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that
the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified date. The
applicable prospectus supplement may describe:
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the designation
and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities
may be held or transferred separately; |
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any provisions
of the governing unit agreement; |
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the price
or prices at which such units will be issued; |
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the applicable
United States federal income tax considerations relating to the units; |
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any provisions
for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; and |
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any other
terms of the units and of the securities comprising the units. |
The provisions described
in this section, as well as those described under “Description of Capital Stock,” “Description of Debt Securities”
and “Description of Warrants” will apply to the securities included in each unit, to the extent relevant and as may be updated
in any prospectus supplements.
Issuance in Series
We may issue units in such
amounts and in as many distinct series as we wish. This section summarizes terms of the units that apply generally to all series. Most
of the financial and other specific terms of your series will be described in the applicable prospectus supplement.
Unit Agreements
We will issue the units under
one or more unit agreements to be entered into between us and a bank or other financial institution, as unit agent. We may add, replace
or terminate unit agents from time to time. We will identify the unit agreement under which each series of units will be issued and the
unit agent under that agreement in the applicable prospectus supplement.
The following provisions
will generally apply to all unit agreements unless otherwise stated in the applicable prospectus supplement:
Modification without Consent
We and the applicable unit
agent may amend any unit or unit agreement without the consent of any holder:
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to cure
any ambiguity; any provisions of the governing unit agreement that differ from those described below; |
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to correct
or supplement any defective or inconsistent provision; or |
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to make
any other change that we believe is necessary or desirable and will not adversely affect the interests of the affected holders in
any material respect. |
We do not need any approval
to make changes that affect only units to be issued after the changes take effect. We may also make changes that do not adversely affect
a particular unit in any material respect, even if they adversely affect other units in a material respect. In those cases, we do not
need to obtain the approval of the holder of the unaffected unit; we need only obtain any required approvals from the holders of the
affected units.
Modification with Consent
We may not amend any particular
unit or a unit agreement with respect to any particular unit unless we obtain the consent of the holder of that unit, if the amendment
would:
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impair
any right of the holder to exercise or enforce any right under a security included in the unit if the terms of that security require
the consent of the holder to any changes that would impair the exercise or enforcement of that right; or |
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reduce
the percentage of outstanding units or any series or class the consent of whose holders is required to amend that series or class,
or the applicable unit agreement with respect to that series or class, as described below. |
Any other change to a particular
unit agreement and the units issued under that agreement would require the following approval:
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If the
change affects only the units of a particular series issued under that agreement, the change must be approved by the holders of a
majority of the outstanding units of that series; or |
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If the
change affects the units of more than one series issued under that agreement, it must be approved by the holders of a majority of
all outstanding units of all series affected by the change, with the units of all the affected series voting together as one class
for this purpose. |
These provisions regarding
changes with majority approval also apply to changes affecting any securities issued under a unit agreement, as the governing document.
In each case, the required approval must be given by written consent.
Unit Agreements Will Not Be Qualified under
Trust Indenture Act
No unit agreement will be
qualified as an indenture, and no unit agent will be required to qualify as a trustee, under the Trust Indenture Act. Therefore, holders
of units issued under unit agreements will not have the protections of the Trust Indenture Act with respect to their units.
Governing Law
The unit agreements and the
units will be governed by Delaware law.
Form, Exchange and Transfer
We will issue each unit in
global—i.e., book-entry—form only. Units in book-entry form will be represented by a global security registered in the name
of a depositary, which will be the holder of all the units represented by the global security. Those who own beneficial interests in
a unit will do so through participants in the depositary’s system, and the rights of these indirect owners will be governed solely
by the applicable procedures of the depositary and its participants. We will describe book-entry securities, and other terms regarding
the issuance and registration of the units in the applicable prospectus supplement.
Each unit and all securities
comprising the unit will be issued in the same form.
If we issue any units in
registered, non-global form, the following will apply to them.
The units will be issued
in the denominations stated in the applicable prospectus supplement. Holders may exchange their units for units of smaller denominations
or combined into fewer units of larger denominations, as long as the total amount is not changed.
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Holders
may exchange or transfer their units at the office of the unit agent. Holders may also replace lost, stolen, destroyed or mutilated
units at that office. We may appoint another entity to perform these functions or perform them ourselves. |
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Holders
will not be required to pay a service charge to transfer or exchange their units, but they may be required to pay for any tax or
other governmental charge associated with the transfer or exchange. The transfer or exchange, and any replacement, will be made only
if our transfer agent is satisfied with the holder’s proof of legal ownership. The transfer agent may also require an indemnity
before replacing any units |
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If we
have the right to redeem, accelerate or settle any units before their maturity, and we exercise our right as to less than all those
units or other securities, we may block the exchange or transfer of those units during the period beginning 15 days before the day
we mail the notice of exercise and ending on the day of that mailing, in order to freeze the list of holders to prepare the mailing.
We may also refuse to register transfers of or exchange any unit selected for early settlement, except that we will continue to permit
transfers and exchanges of the unsettled portion of any unit being partially settled. We may also block the transfer or exchange
of any unit in this manner if the unit includes securities that are or may be selected for early settlement. |
Only the depositary will
be entitled to transfer or exchange a unit in global form, since it will be the sole holder of the unit.
Payments and Notices
In making payments and giving
notices with respect to our units, we will follow the procedures as described in the applicable prospectus supplement.
LEGAL OWNERSHIP OF SECURITIES
We can issue securities in
registered form or in the form of one or more global securities. We describe global securities in greater detail below. We refer to those
persons who have securities registered in their own names on the books that we or any applicable trustee maintain for this purpose as
the “holders” of those securities. These persons are the legal holders of the securities. We refer to those persons who,
indirectly through others, own beneficial interests in securities that are not registered in their own names, as “indirect holders”
of those securities. As we discuss below, indirect holders are not legal holders, and investors in securities issued in book-entry form
or in street name will be indirect holders.
Book-Entry Holders
We may issue securities in
book-entry form only, as we will specify in the applicable prospectus supplement. This means securities may be represented by one or
more global securities registered in the name of a financial institution that holds them as depositary on behalf of other financial institutions
that participate in the depositary’s book-entry system. These participating institutions, which are referred to as participants,
in turn, hold beneficial interests in the securities on behalf of themselves or their customers.
Only the person in whose
name a security is registered is recognized as the holder of that security. Securities issued in global form will be registered in the
name of the depositary or its nominee. Consequently, for securities issued in global form, we will recognize only the depositary as the
holder of the securities, and we will make all payments on the securities to the depositary. The depositary passes along the payments
it receives to its participants, which in turn pass the payments along to their customers who are the beneficial owners. The depositary
and its participants do so under agreements they have made with one another or with their customers; they are not obligated to do so
under the terms of the securities.
As a result, investors in
a book-entry security will not own securities directly. Instead, they will own beneficial interests in a global security, through a bank,
broker or other financial institution that participates in the depositary’s book-entry system or holds an interest through a participant.
As long as the securities are issued in global form, investors will be indirect holders, and not holders, of the securities.
Street Name Holders
We may terminate a global
security or issue securities in non-global form. In these cases, investors may choose to hold their securities in their own names or
in “street name.” Securities held by an investor in street name would be registered in the name of a bank, broker or other
financial institution that the investor chooses, and the investor would hold only a beneficial interest in those securities through an
account he or she maintains at that institution.
For securities held in street
name, we will recognize only the intermediary banks, brokers and other financial institutions in whose names the securities are registered
as the holders of those securities, and we will make all payments on those securities to them. These institutions pass along the payments
they receive to their customers who are the beneficial owners, but only because they agree to do so in their customer agreements or because
they are legally required to do so. Investors who hold securities in street name will be indirect holders, not holders, of those securities.
Legal Holders
Our obligations, as well
as the obligations of any applicable trustee and of any third parties employed by us or a trustee, run only to the legal holders of the
securities. We do not have obligations to investors who hold beneficial interests in global securities, in street name or by any other
indirect means. This will be the case whether an investor chooses to be an indirect holder of a security or has no choice because we
are issuing the securities only in global form.
For example, once we make
a payment or give a notice to the holder, we have no further responsibility for the payment or notice even if that holder is required,
under agreements with depositary participants or customers or by law, to pass it along to the indirect holders but does not do so. Similarly,
we may want to obtain the approval of the holders to amend an indenture, to relieve us of the consequences of a default or of our obligation
to comply with a particular provision of the indenture or for other purposes. In such an event, we would seek approval only from the
holders, and not the indirect holders, of the securities. Whether and how the holders contact the indirect holders is up to the holders.
Special Considerations for Indirect Holders
If you hold securities through
a bank, broker or other financial institution, either in book-entry form or in street name, you should check with your own institution
to find out:
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how it
handles securities payments and notices; |
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whether
it imposes fees or charges; |
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how it
would handle a request for the holders’ consent, if ever required; |
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whether
and how you can instruct it to send you securities registered in your own name so you can be a holder, if that is permitted in the
future; |
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how it
would exercise rights under the securities if there were a default or other event triggering the need for holders to act to protect
their interests; and |
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if the
securities are in book entry form, how the depositary’s rules and procedures will affect these matters. |
Global Securities
A global security is a security
held by a depositary that represents one or any other number of individual securities. Generally, all securities represented by the same
global securities will have the same terms.
Each security issued in book-entry
form will be represented by a global security that we deposit with and register in the name of a financial institution or its nominee
that we select. The financial institution that we select for this purpose is called the depositary. Unless we specify otherwise in the
applicable prospectus supplement, DTC will be the depositary for all securities issued in book-entry form.
A global security may not
be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor depositary, unless special
termination situations arise. We describe those situations below under “—Special Situations When a Global Security Will Be
Terminated.” As a result of these arrangements, the depositary, or its nominee, will be the sole registered owner and holder of
all securities represented by a global security, and investors will be permitted to own only beneficial interests in a global security.
Beneficial interests must be held by means of an account with a broker, bank or other financial institution that in turn has an account
with the depositary or with another institution that does. Thus, an investor whose security is represented by a global security will
not be a holder of the security, but only an indirect holder of a beneficial interest in the global security.
If the prospectus supplement
for a particular security indicates that the security will be issued in global form only, then the security will be represented by a
global security at all times unless and until the global security is terminated. If termination occurs, we may issue the securities through
another book-entry clearing system or decide that the securities may no longer be held through any book-entry clearing system.
Special Considerations for Global Securities
As an indirect holder, an
investor’s rights relating to a global security will be governed by the account rules of the investor’s financial institution
and of the depositary, as well as general laws relating to securities transfers. We do not recognize an indirect holder as a holder of
securities and instead deal only with the depositary that holds the global security.
If securities are issued
only in the form of a global security, an investor should be aware of the following:
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an investor
cannot cause the securities to be registered in his or her name, and cannot obtain non global certificates for his or her interest
in the securities, except in the special situations we describe below; |
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an investor
will be an indirect holder and must look to his or her own bank or broker for payments on the securities and protection of his or
her legal rights relating to the securities, as we describe under “—Legal Holders” above; |
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an investor
may not be able to sell interests in the securities to some insurance companies and to other institutions that are required by law
to own their securities in non-book entry form; |
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an investor
may not be able to pledge his or her interest in a global security in circumstances where certificates representing the securities
must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective; |
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the depositary’s
policies, which may change from time to time, will govern payments, transfers, exchanges and other matters relating to an investor’s
interest in a global security. We and any applicable trustee have no responsibility for any aspect of the depositary’s actions
or for its records of ownership interests in a global security. We and the trustee also do not supervise the depositary in any way; |
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the depositary
may, and we understand that DTC will, require that those who purchase and sell interests in a global security within its book entry
system use immediately available funds, and your broker or bank may require you to do so as well; and |
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financial
institutions that participate in the depositary’s book entry system, and through which an investor holds its interest in a
global security, may also have their own policies affecting payments, notices and other matters relating to the securities. There
may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not responsible
for the actions of any of those intermediaries. |
Special Situations When A Global Security
Will Be Terminated
In a few special situations
described below, the global security will terminate and interests in it will be exchanged for physical certificates representing those
interests. After that exchange, the choice of whether to hold securities directly or in street name will be up to the investor. Investors
must consult their own banks or brokers to find out how to have their interests in securities transferred to their own name, so that
they will be direct holders. We have described the rights of holders and street name investors above.
The global security will
terminate when the following special situations occur:
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if the
depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary for that global security and
we do not appoint another institution to act as depositary within 90 days; |
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if we
notify any applicable trustee that we wish to terminate that global security; or |
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if an
event of default has occurred with regard to securities represented by that global security and has not been cured or waived. |
The prospectus supplement
may also list additional situations for terminating a global security that would apply only to the particular series of securities covered
by the prospectus supplement. When a global security terminates, the depositary, and not we or any applicable trustee, is responsible
for deciding the names of the institutions that will be the initial direct holders.
PLAN OF DISTRIBUTION
We may offer securities under
this prospectus from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination of
these methods or through underwriters or dealers, through agents and/or directly to one or more purchasers. The securities may be distributed
from time to time in one or more transactions:
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at a fixed
price or prices, which may be changed; |
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at market
prices prevailing at the time of sale; |
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at prices
related to such prevailing market prices; |
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at negotiated
prices; or |
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a combination
of these pricing methods. |
We may also sell equity securities
covered by this registration statement in an “at the market offering” as defined in Rule 415(a)(4) under the Securities
Act. Such offering may be made into an existing trading market for such securities in transactions at other than a fixed price on or
through the facilities of Nasdaq or any other securities exchange or quotation or trading service on which such securities may be listed,
quoted or traded at the time of sale. Such at the market offerings, if any, may be conducted by underwriters acting as principal or agent.
Each time that securities
covered by this prospectus are sold, we will provide a prospectus supplement or supplements that will describe the method of distribution
and set forth the terms and conditions of the offering of such securities, including the offering price of the securities and the proceeds
to us, if applicable.
Offers to purchase the securities
being offered by this prospectus may be solicited directly. Agents may also be designated to solicit offers to purchase the securities
from time to time. Any agent involved in the offer or sale of our securities will be identified in a prospectus supplement.
If a dealer is utilized in
the sale of the securities being offered by this prospectus, the securities will be sold to the dealer, as principal. The dealer may
then resell the securities to the public at varying prices to be determined by the dealer at the time of resale.
If an underwriter is utilized
in the sale of the securities being offered by this prospectus, an underwriting agreement will be executed with the underwriter at the
time of sale and the name of any underwriter will be provided in the prospectus supplement that the underwriter will use to make resales
of the securities to the public. In connection with the sale of the securities, we, or the purchasers of securities for whom the underwriter
may act as agent, may compensate the underwriter in the form of underwriting discounts or commissions. The underwriter may sell the securities
to or through dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters
and/or commissions from the purchasers for which they may act as agent. Unless otherwise indicated in a prospectus supplement, an agent
will be acting on a best efforts basis and a dealer will purchase securities as a principal, and may then resell the securities at varying
prices to be determined by the dealer.
Any compensation paid to
underwriters, dealers or agents in connection with the offering of the securities, and any discounts, concessions or commissions allowed
by underwriters to participating dealers will be provided in the applicable prospectus supplement. Underwriters, dealers and agents participating
in the distribution of the securities may be deemed to be underwriters within the meaning of the Securities Act, and any discounts and
commissions received by them and any profit realized by them on resale of the securities may be deemed to be underwriting discounts and
commissions. We may enter into agreements to indemnify underwriters, dealers and agents against civil liabilities, including liabilities
under the Securities Act, or to contribute to payments they may be required to make in respect thereof and to reimburse those persons
for certain expenses.
The securities may or may
not be listed on a national securities exchange. To facilitate the offering of securities, certain persons participating in the offering
may engage in transactions that stabilize, maintain or otherwise affect the price of the securities. This may include over-allotments
or short sales of the securities, which involve the sale by persons participating in the offering of more securities than were sold to
them. In these circumstances, these persons would cover such over-allotments or short positions by making purchases in the open market
or by exercising their over-allotment option, if any. In addition, these persons may stabilize or maintain the price of the securities
by bidding for or purchasing securities in the open market or by imposing penalty bids, whereby selling concessions allowed to dealers
participating in the offering may be reclaimed if securities sold by them are repurchased in connection with stabilization transactions.
The effect of these transactions may be to stabilize or maintain the market price of the securities at a level above that which might
otherwise prevail in the open market. These transactions may be discontinued at any time.
If indicated in the applicable
prospectus supplement, underwriters or other persons acting as agents may be authorized to solicit offers by institutions or other suitable
purchasers to purchase the securities at the public offering price set forth in the prospectus supplement, pursuant to delayed delivery
contracts providing for payment and delivery on the date or dates stated in the prospectus supplement. These purchasers may include,
among others, commercial and savings banks, insurance companies, pension funds, investment companies and educational and charitable institutions.
Delayed delivery contracts will be subject to the condition that the purchase of the securities covered by the delayed delivery contracts
will not at the time of delivery be prohibited under the laws of any jurisdiction in the United States to which the purchaser is subject.
The underwriters and agents will not have any responsibility with respect to the validity or performance of these contracts.
We may enter into derivative
transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions.
If the applicable prospectus supplement so indicates, in connection with those derivatives, the third parties may sell securities covered
by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party may use securities
pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities
received from us in settlement of those derivatives to close out any related open borrowings of stock. The third party in such sale transactions
will be an underwriter and, if not identified in this prospectus, will be named in the applicable prospectus supplement (or a post-effective
amendment). In addition, we may otherwise loan or pledge securities to a financial institution or other third party that in turn may
sell the securities short using this prospectus and an applicable prospectus supplement. Such financial institution or other third party
may transfer its economic short position to investors in our securities or in connection with a concurrent offering of other securities.
The specific terms of any
lock-up provisions in respect of any given offering will be described in the applicable prospectus supplement.
The underwriters, dealers
and agents may engage in transactions with us, or perform services for us, in the ordinary course of business for which they receive
compensation.
General Information
Underwriters, dealers and
agents that participate in the distribution of our securities may be underwriters as defined in the Securities Act, and any discounts
or commissions they receive and any profit they make on the resale of the offered securities may be treated as underwriting discounts
and commissions under the Securities Act. Any underwriters or agents will be identified and their compensation described in a prospectus
supplement. We may indemnify agents, underwriters, and dealers against certain civil liabilities, including liabilities under the Securities
Act, or make contributions to payments they may be required to make relating to those liabilities. Our agents, underwriters, and dealers,
or their affiliates, may be customers of, engage in transactions with, or perform services for us in the ordinary course of business.
Each series of securities
offered by this prospectus may be a new issue of securities with no established trading market. Any underwriters to whom securities offered
by this prospectus are sold by us for public offering and sale may make a market in the securities offered by this prospectus, but the
underwriters will not be obligated to do so and may discontinue any market making at any time without notice. No assurance can be given
as to the liquidity of the trading market for any securities offered by this prospectus.
Representatives of the underwriters
through whom our securities are sold for public offering and sale may engage in over-allotment, stabilizing transactions, syndicate short
covering transactions and penalty bids in accordance with Regulation M under the Exchange Act. Over-allotment involves syndicate sales
in excess of the offering size, which creates a syndicate short position. Stabilizing transactions permit bids to purchase the offered
securities so long as the stabilizing bids do not exceed a specified maximum.
Syndicate covering transactions
involve purchases of the offered securities in the open market after the distribution has been completed in order to cover syndicate
short positions. Penalty bids permit the representative of the underwriters to reclaim a selling concession from a syndicate member when
the offered securities originally sold by such syndicate member are purchased in a syndicate covering transaction to cover syndicate
short positions. Such stabilizing transactions, syndicate covering transactions and penalty bids may cause the price of the offered securities
to be higher than it would otherwise be in the absence of such transactions. These transactions may be effected on a national securities
exchange and, if commenced, may be discontinued at any time.
Underwriters, dealers and
agents may be customers of, engage in transactions with or perform services for, us and our subsidiaries in the ordinary course of business.
We will bear all costs, expenses
and fees in connection with the registration of the securities as well as the expense of all commissions and discounts, if any, attributable
to the sales of any of our securities by us.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly
and current reports, proxy statements and other information with the SEC. The SEC maintains a website at http://www.sec.gov that contains
reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC. In addition,
we maintain a website at http://www.cytosorbents.com and make available free of charge on this website our annual reports on Form 10-K,
quarterly reports on Form 10-Q, current reports on Form 8-K and amendments to those reports filed or furnished pursuant to
Section 13(a) or 15(d) of the Exchange Act as soon as reasonably practicable after we electronically file such material
with, or furnish it to, the SEC. Information contained in, or accessible through, our website does not constitute a part of this prospectus
or any accompanying prospectus supplement.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows
us to “incorporate by reference” much of the information we file with it, which means that we can disclose important information
to you by referring you to those publicly available documents. All of the information that we incorporate by reference is considered
to be part of this prospectus, and any of our subsequent filings with the SEC will automatically update and supersede this information.
This prospectus incorporates by reference the documents listed below and any future filings made by CytoSorbents Corporation with the
SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, except for information furnished under Items 2.02 or 7.01 of our
current reports on Form 8-K, or exhibits related thereto, between the date of this prospectus and the termination of the offering
of the securities:
|
· |
our current
reports on Form 8-K, filed on January 17, 2024, March 15, 2024, April 3, 2024, May 6, 2024, May 9, 2024, May 22, 2024, June 10, 2024 and July 5, 2024 (provided that any portions of such reports that are deemed furnished
and not filed pursuant to instructions to Form 8-K shall not be incorporated by reference into this prospectus); and |
Any statement contained in
any document incorporated by reference herein will be deemed to be modified or superseded for purposes of this prospectus to the extent
that a statement contained in this prospectus or any additional prospectus supplements modifies or supersedes such statement. Any statement
so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
We will provide, upon written
or oral request, at no cost, to each person, including any beneficial owner, to whom a prospectus is delivered, a copy of any or all
of the information that has been incorporated by reference in the prospectus but not delivered with the prospectus. You may request a
copy of these filings by writing us at CytoSorbents Corporation, 305 College Road East, Princeton, New Jersey 08540. Our telephone number
is (732) 329-8885. A copy of all documents that are incorporated by reference into this prospectus can also be found on our website by
accessing http://www.cytosorbents.com.
You should rely only on the
information incorporated by reference or provided in this prospectus or any supplement. We have not authorized anyone else to provide
you with different information. You should not assume that information in this prospectus or any supplement is accurate as of any date
other than the date on the front of these documents.
LEGAL MATTERS
The validity of the shares
of common stock offered hereby will be passed upon for us by Morgan, Lewis & Bockius LLP, Princeton, New Jersey. Additional
legal matters may be passed upon by us or any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus
supplement.
EXPERTS
The consolidated financial
statements of CytoSorbents Corporation appearing in CytoSorbents Corporation’s annual report on Form 10-K for the year ended
December 31, 2023, have been audited by WithumSmith+Brown, PC, independent registered public accounting firm, as set forth in their
reports thereon, (which report includes an explanatory paragraph regarding the existence of substantial doubt about the Company’s
ability to continue as a going concern) included therein, and incorporated herein by reference. Such consolidated financial statements
are incorporated herein by reference in reliance upon such reports given on the authority of such firm as experts in accounting and auditing.
![](https://www.sec.gov/Archives/edgar/data/1175151/000110465924083067/tm2420077d1_s3img001.jpg)
$150,000,000
Common Stock, Preferred Stock,
Debt Securities, Warrants and Units
PROSPECTUS
, 2024
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. |
Other
Expenses of Issuance and Distribution |
The following table sets forth an estimate of
the costs and expenses payable by CytoSorbents Corporation in connection with the offering described in this registration statement.
All of the amounts shown are estimates except the Securities and Exchange Commission (“SEC”) registration fee and the Financial
Industry Regulatory Authority filing fee:
Securities and
Exchange Commission Registration Fee |
|
$ |
5,848.70 |
|
Financial Industry Regulatory
Authority filing fee |
|
|
6,444.00 |
|
Printing |
|
|
* |
|
Accounting Fees and Expenses |
|
|
* |
|
Transfer Agent and Registrar
Fees |
|
|
* |
|
Legal Fees and Expenses |
|
|
* |
|
Miscellaneous |
|
|
* |
|
Total |
|
$ |
* |
|
* These fees are calculated based on the securities offered and the
number of issuances and accordingly cannot be estimated at this time.
Item 15. |
Indemnification
of Directors and Officers |
Our directors and officers
are indemnified as provided by the Delaware General Corporation Law, our Certificate of Incorporation and Bylaws. We have been advised
that, in the opinion of the SEC, indemnification for liabilities arising under the Securities Act of 1933 is against public policy as
expressed in the Securities Act of 1933, and is, therefore, unenforceable. In the event that a claim for indemnification against such
liabilities is asserted by one of our directors, officers, or controlling persons in connection with the securities being registered,
we will, unless in the opinion of our legal counsel the matter has been settled by controlling precedent, submit the question of whether
such indemnification is against public policy to a court of appropriate jurisdiction. We will then be governed by the court’s decision.
The exhibits to this Registration Statement are
listed in the Exhibit Index to this Registration Statement, which Exhibit Index is hereby incorporated by reference.
INDEX
TO EXHIBITS
Exhibit Number |
|
Description |
|
|
|
1.1 |
|
Form of Underwriting Agreement.* |
|
|
|
1.2 |
|
Open Market Sale AgreementSM, dated December 30, 2021, by and between CytoSorbents Corporation and Jefferies LLC (incorporated by reference to Exhibit 1.1 of the Company’s Current Report on Form 8-K filed on December 30, 2021). |
|
|
|
3.1 |
|
Second Amended and Restated Certificate of Incorporation, dated June 12, 2019 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on June 13, 2019). |
|
|
|
3.2 |
|
Second Amended and Restated Bylaws of CytoSorbents Corporation as of May 2, 2024 (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on May 6, 2024). |
|
|
|
4.1 |
|
Certificate of Designations of Preferred Stock.* |
|
|
|
4.2 |
|
Form of Preferred Stock Certificate.* |
|
|
|
4.3 |
|
Form of Warrant.* |
|
|
|
4.4 |
|
Form of Unit Certificate.* |
|
|
|
4.5 |
|
Form of Indenture. |
|
|
|
5.1 |
|
Opinion of Morgan, Lewis & Bockius LLP (US) |
|
|
|
23.1 |
|
Consent of WithumSmith+Brown, PC, Independent Registered Public Accounting Firm. |
|
|
|
23.2 |
|
Consent of Morgan, Lewis & Bockius LLP (US) (US) (included in Exhibit 5.1). |
|
|
|
24.1 |
|
Powers of Attorney (included on signature page to this Registration Statement). |
|
|
|
25.1 |
|
Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the Trustee under the Senior Indenture* |
|
|
|
25.2 |
|
Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the Trustee under the Subordinated Indenture* |
|
|
|
107 |
|
Filing Fee Table |
* To be filed by amendment or as an exhibit to a document incorporated
by reference or deemed to be incorporated by reference in this registration statement, including a current report on Form 8-K, in
connection with the offering of any securities, as appropriate.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) | To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933; |
(ii) | To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus
filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee”
table in the effective registration statement; and |
(iii) | To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any material change to such information in the registration
statement; |
provided, however, that paragraphs (1)(i),
(1)(ii) and (1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by
those paragraphs is contained in reports filed with or furnished to the Securities and Exchange Commission by the registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination
of the offering.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) | Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall
be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration
statement; and |
(ii) | Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i),
(vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall
be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided
in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed
to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus
relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; provided, however,
that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated
or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as
to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective
date. |
(5) That,
for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities, 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. |
(6) That,
for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated
by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7) If
and when applicable, to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Securities and Exchange
Commission under Section 305(b)2 of the Trust Indenture Act
Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Princeton, New Jersey, on July 26, 2024.
|
CYTOSORBENTS CORPORATION |
|
|
|
|
By: |
/s/ Dr. Phillip
P. Chan |
|
|
Dr. Phillip P. Chan |
|
|
Chief Executive Officer |
POWER OF ATTORNEY
KNOW BY ALL MEN BY THESE
PRESENTS, that each person whose signature appears below constitutes and appoints Dr. Phillip P. Chan and Kathleen P. Bloch, and
each of them, the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution and revocation, for
and in the undersigned’s 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 registration statement filed pursuant to Rule 462(b) under the Securities
Act of 1933, as amended, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as the undersigned might or could
do in person, hereby ratify and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitutes, may
lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements
of the Securities Exchange Act of 1933, as amended, this registration statement has been signed below by the following persons on behalf
of the registrant and in the capacities indicated on the date listed below.
Signature |
|
Title |
|
Date |
/s/ Michael G. Bator |
|
Chairman of the Board of Directors |
|
July 26, 2024 |
Michael G. Bator |
|
|
|
|
|
|
|
|
|
/s/ Dr. Phillip P. Chan |
|
President
and Chief Executive Officer |
|
July 26, 2024 |
Dr. Philip P. Chan |
|
(Principal Executive Officer) and Director |
|
|
|
|
|
|
|
/s/ Kathleen P Bloch |
|
Chief
Financial Officer |
|
July 26, 2024 |
Kathleen P. Bloch |
|
(Principal Financial and Accounting Officer) |
|
|
|
|
|
|
|
/s/ Alan D. Sobel |
|
Director |
|
July 26, 2024 |
Alan D. Sobel |
|
|
|
|
|
|
|
|
|
/s/ Edward R. Jones |
|
Director |
|
July 26, 2024 |
Edward R. Jones |
|
|
|
|
|
|
|
|
|
/s/ Jiny Kim |
|
Director |
|
July 26, 2024 |
Jiny Kim |
|
|
|
|
|
|
|
|
|
Exhibit 4.5
CytoSorbents
CORPORATION
INDENTURE
Dated as of [·]
[·]
Trustee
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS
SECTION 1.01. |
Certain Terms Defined |
1 |
SECTION 1.02. |
Other Definitions |
5 |
SECTION 1.03. |
Rules of Construction |
5 |
ARTICLE 2
SECURITY
FORMS
SECTION 2.01. |
Forms Generally |
5 |
SECTION 2.02. |
Guarantees by Guarantor; Form of Guarantee;
Release of Guarantee. |
5 |
SECTION 2.03. |
Form of Trustee’s Certificate of Authentication |
7 |
ARTICLE 3
ISSUE,
EXECUTION, FORM AND REGISTRATION OF SECURITIES
SECTION 3.01. |
Amount Unlimited; Issuable in
Series |
8 |
SECTION 3.02. |
Authentication and Delivery of Securities |
10 |
SECTION 3.03. |
Execution of Securities |
10 |
SECTION 3.04. |
Certificate of Authentication |
10 |
SECTION 3.05. |
Denomination, Currency and Date of Securities; Payments
of Interest. |
10 |
SECTION 3.06. |
Global Security Legend |
11 |
SECTION 3.07. |
Registration, Transfer and Exchange |
12 |
SECTION 3.08. |
Book-Entry Provisions for Global Securities. |
13 |
SECTION 3.09. |
Mutilated, Defaced, Destroyed, Lost and Stolen Securities |
14 |
SECTION 3.10. |
Cancellation of Securities |
14 |
SECTION 3.11. |
Temporary Securities |
14 |
SECTION 3.12. |
CUSIP and ISIN Numbers |
15 |
ARTICLE 4
CERTAIN
COVENANTS
SECTION 4.01. |
Payment of Principal, Premium
and Interest on Securities |
15 |
SECTION 4.02. |
Maintenance of Office or Agency |
15 |
SECTION 4.03. |
Money for Securities Payments to be Held in Trust. |
15 |
SECTION 4.04. |
Existence |
16 |
SECTION 4.05. |
Statement by Officers as to Default |
16 |
SECTION 4.06. |
Waiver of Certain Covenants |
16 |
ARTICLE 5
REMEDIES
OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
SECTION 5.01. |
Events of Default |
16 |
SECTION 5.02. |
Acceleration |
17 |
SECTION 5.03. |
Other Remedies |
18 |
TABLE OF CONTENTS
(continued)
Page
SECTION 5.04. |
Waiver of Past Defaults |
18 |
SECTION 5.05. |
Control by Majority |
18 |
SECTION 5.06. |
Limitation on Suits |
18 |
SECTION 5.07. |
Rights of Holders to Receive Payment |
19 |
SECTION 5.08. |
Collection Suit by Trustee |
19 |
SECTION 5.09. |
Trustee May File Proofs of Claim |
19 |
SECTION 5.10. |
Priorities |
19 |
SECTION 5.11. |
Undertaking for Costs |
20 |
SECTION 5.12. |
Restoration of Rights and Remedies |
20 |
SECTION 5.13. |
Rights and Remedies Cumulative |
20 |
SECTION 5.14. |
Delay or Omission Not Waiver |
20 |
ARTICLE 6
THE TRUSTEE
SECTION 6.01. |
Duties and Responsibilities of
the Trustee; During Default; Prior to Default |
20 |
SECTION 6.02. |
Certain Rights of the Trustee |
21 |
SECTION 6.03. |
Trustee Not Responsible for Recitals, Disposition
of Securities or Application of Proceeds Thereof |
22 |
SECTION 6.04. |
Trustee and Agents May Hold Securities; Collections,
Etc. |
22 |
SECTION 6.05. |
Moneys Held by Trustee |
22 |
SECTION 6.06. |
Notice of Default |
22 |
SECTION 6.07. |
Compensation and Indemnification of Trustee and
Its Prior Claim |
23 |
SECTION 6.08. |
Right of Trustee to Rely on Officers’ Certificate,
Etc. |
23 |
SECTION 6.09. |
Persons Eligible for Appointment as Trustee |
23 |
SECTION 6.10. |
Resignation and Removal; Appointment of Successor
Trustee. |
23 |
SECTION 6.11. |
Acceptance of Appointment by Successor |
24 |
SECTION 6.12. |
Merger, Conversion, Consolidation or Succession
to Business of Trustee |
25 |
SECTION 6.13. |
Preferential Collection of Claims |
26 |
SECTION 6.14. |
Communications with the Trustee |
26 |
SECTION 6.15. |
Paying Agent/Registrar |
26 |
ARTICLE 7
CONCERNING
THE HOLDERS
SECTION 7.01. |
Evidence of Action Taken by Holders |
26 |
SECTION 7.02. |
Proof of Execution of Instruments and of Holding
of Securities; Record Date |
26 |
SECTION 7.03. |
Who May Be Deemed Owners of Securities |
26 |
SECTION 7.04. |
Securities Owned by Company Deemed Not Outstanding |
27 |
SECTION 7.05. |
Record Date for Action by Holders |
27 |
SECTION 7.06. |
Right of Revocation of Action Taken |
27 |
ARTICLE 8
MEETINGS
OF HOLDERS
SECTION 8.01. |
Purposes for Which Meeting May Be
Called |
27 |
SECTION 8.02. |
Manner of Calling Meetings; Record Date |
28 |
SECTION 8.03. |
Call of Meeting by Company or Holders |
29 |
TABLE OF CONTENTS
(continued)
Page
SECTION 8.04. |
Who May Attend and Vote
at Meeting |
28 |
SECTION 8.05. |
Regulations |
28 |
SECTION 8.06. |
Manner of Voting at Meetings and Record to be Kept |
29 |
SECTION 8.07. |
Exercise of Rights of Trustee and Holders Not to
be Hindered or Delayed |
29 |
ARTICLE 9
SUPPLEMENTAL
INDENTURES
SECTION 9.01. |
Supplemental Indentures Without
Consent of Holders |
29 |
SECTION 9.02. |
With Consent of Holders |
30 |
SECTION 9.03. |
Effect of Supplemental Indenture |
31 |
SECTION 9.04. |
Documents to Be Given to Trustee; Compliance with
TIA |
31 |
SECTION 9.05. |
Notation on Securities in Respect of Supplemental
Indentures |
31 |
ARTICLE 10
CONSOLIDATION,
MERGER OR SALE OF ASSETS
SECTION 10.01. |
When the Company May Merge,
Etc. |
31 |
SECTION 10.02. |
Successor Person Substituted |
32 |
SECTION 10.03. |
Opinion of Counsel to Trustee |
32 |
ARTICLE 11
REDEMPTION
OF SECURITIES
SECTION 11.01. |
Applicability of Article |
32 |
SECTION 11.02. |
Notice of Redemption; Partial Redemptions |
32 |
SECTION 11.03. |
Payment of Securities Called for Redemption |
33 |
ARTICLE 12
DEFEASANCE
AND COVENANT DEFEASANCE
SECTION 12.01. |
Applicability of the Article;
Company’s Option to Effect Defeasance or Covenant Defeasance |
33 |
SECTION 12.02. |
Legal Defeasance and Discharge |
33 |
SECTION 12.03. |
Covenant Defeasance |
34 |
SECTION 12.04. |
Conditions to Legal or Covenant Defeasance |
34 |
SECTION 12.05. |
Deposited Money and Government Securities to be
Held in Trust; Other Miscellaneous Provisions |
35 |
SECTION 12.06. |
Repayment to the Company or Guarantor |
35 |
SECTION 12.07. |
Reinstatement |
35 |
ARTICLE 13
SATISFACTION
AND DISCHARGE
SECTION 13.01. |
Satisfaction and Discharge of
Indenture |
36 |
SECTION 13.02. |
Application of Trust Money |
36 |
TABLE OF CONTENTS
(continued)
Page
ARTICLE 14
HOLDERS’
LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTORS
SECTION 14.01. |
Company to Furnish Trustee Names
and Addresses of Holders |
37 |
SECTION 14.02. |
Preservation of Information; Communications to Holders |
37 |
SECTION 14.03. |
Reports by the Trustee |
38 |
SECTION 14.04. |
Reports by the Company and Guarantors |
38 |
ARTICLE 15
MISCELLANEOUS
PROVISIONS
SECTION 15.01. |
Incorporators, Stockholders,
Members, Partners, Officers, Managers and Directors of Company or any Guarantor Exempt from Individual Liability |
38 |
SECTION 15.02. |
Provisions of Indenture for the Sole Benefit of
Parties and Holders |
38 |
SECTION 15.03. |
Successors and Assigns of Company or Guarantor Bound
by Indenture |
38 |
SECTION 15.04. |
Notices, Etc., to Trustee, the Company and Guarantors |
38 |
SECTION 15.05. |
Notices to Holders |
39 |
SECTION 15.06. |
Officers’ Certificates and Opinions of Counsel;
Statements to Be Contained Therein |
39 |
SECTION 15.07. |
Payments Due on Saturdays, Sundays and Holidays |
40 |
SECTION 15.08. |
Conflict of Any Provision of Indenture with Trust
Indenture Act |
40 |
SECTION 15.09. |
Conflict of Any Provision of Securities with Indenture |
40 |
SECTION 15.10. |
New York Law to Govern |
40 |
SECTION 15.11. |
Waiver of Jury Trial |
40 |
SECTION 15.12. |
Consent to Jurisdiction and Service |
40 |
SECTION 15.13. |
Third Party Beneficiaries |
40 |
SECTION 15.14. |
Counterparts |
40 |
SECTION 15.15. |
Effect of Headings, Table of Contents |
40 |
SECTION 15.16. |
No Adverse Interpretation of Other Agreements |
40 |
SECTION 15.17. |
Severability |
40 |
SECTION 15.18. |
Patriot Act Compliance |
41 |
SECTION 15.19. |
Force Majeure |
41 |
CYTOSORBENTS CORPORATION
Reconciliation and tie between Trust Indenture
Act of 1939, as amended,
and this Indenture
Trust
Indenture Act |
|
Indenture |
Section
|
|
Section |
§310 |
(a)(1) |
|
6.09 |
|
(a)(2) |
|
6.09 |
|
(a)(3) |
|
Not Applicable |
|
(a)(4) |
|
Not Applicable |
|
(a)(5) |
|
6.09 |
|
(b) |
|
6.04, 6.10 |
§311 |
(a) |
|
6.13 |
|
(b) |
|
6.13 |
§312 |
(a) |
|
14.01, 14.02(a) |
|
(b) |
|
14.02(b) |
|
(c) |
|
14.02(c) |
§313 |
(a) |
|
14.03(a) |
|
(b) |
|
14.03(a) |
|
(c) |
|
14.03(a), 14.03(b) |
|
(d) |
|
14.03(b) |
§314 |
(a) |
|
4.05, 14.04 |
|
(b) |
|
Not Applicable |
|
(c)(1) |
|
15.06 |
|
(c)(2) |
|
15.06 |
|
(c)(3) |
|
Not Applicable |
|
(d) |
|
Not Applicable |
|
(e) |
|
15.06 |
§315 |
(a) |
|
6.01 |
|
(b) |
|
6.06, 14.03(a) |
|
(c) |
|
6.01 |
|
(d) |
|
6.01 |
|
(e) |
|
5.11 |
§316 |
(a)(1)(A) |
|
5.05 |
|
(a)(1)(B) |
|
5.02, 5.04 |
|
(a)(2) |
|
Not Applicable |
|
(b) |
|
5.07 |
|
(c) |
|
7.02, 8.03 |
§317 |
(a)(1) |
|
5.08 |
|
(a)(2) |
|
5.09 |
|
(b) |
|
4.03 |
318 |
(a) |
|
15.08 |
This cross-reference table shall not, for any purpose, be deemed to
be part of this Indenture.
INDENTURE dated as of [·]
between CytoSorbents Corporation, a Delaware corporation (the “Company”), the Guarantors (as defined herein) and [·],
as trustee (the “Trustee”).
W I T N E S S E T H:
WHEREAS, the Company and the Guarantors have duly
authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes
or other evidences of indebtedness (herein called the “Securities”), to be issued in one or more series as in this Indenture
provided; and
WHEREAS, all things necessary to make the Indenture
a valid indenture and agreement according to its terms, have been done.
NOW, THEREFORE:
In consideration of the premises and the purchases
of the Securities by the Holders thereof, the Company, the Guarantors and the Trustee mutually covenant and agree for the equal and proportionate
benefit of the respective Holders from time to time of the Securities as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Certain
Terms Defined. The following terms (except as otherwise expressly provided or unless the context otherwise clearly requires) for
all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section.
All other terms used in this Indenture which are defined in the Trust Indenture Act or the definitions of which in the Securities Act
are referred to in the Trust Indenture Act (except as herein otherwise expressly provided or unless the context otherwise clearly requires),
shall have the meanings assigned to such terms in the Trust Indenture Act and in the Securities Act as in force at the date of this Indenture.
All accounting terms used herein and not expressly defined shall have the meanings given to them in accordance with generally accepted
accounting principles in the United States (whether or not such is indicated herein). The words “herein,” “hereof”
and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision. The terms defined in this Article include the plural as well as the singular.
“Agent Members” has the meaning provided
in Section 3.08(a).
“Board of Directors” means, with respect
to any Person, the board of directors or board of managers of such Person, or any authorized committee of the board of directors or board
of managers of such Person or any officer of such Person duly authorized by the board of directors or board of managers of such Person
to take a specific action.
“Board Resolution” means, with respect
to the Company or any Guarantor, a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company or such Guarantor,
respectively, to have been duly adopted by the Board of Directors of the Company or such Guarantor, respectively, and to be in full force
and effect on the date of such certification, and delivered to the Trustee.
“Business
Day” means any day except a Saturday, Sunday or other day on which banking institutions or trust companies located in the
same jurisdiction as the Payment Office specified pursuant to Section 3.01 are authorized or obligated by law or executive order
to close, except as otherwise specified pursuant to Section 3.01.
“Commission” means the United States
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 the Person named as
the “Company” in the first paragraph of this Indenture until a successor shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “Company” shall mean such successor.
“Company Request” or “Company
Order” means a written request or order signed in the name of the Company by its Executive Chairman of the Board of Directors,
its President, its Chief Executive Officer, its Chief Financial Officer, its Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
“Corporate Trust Office” means the
corporate trust office of the Trustee at which the corporate trust business of the Trustee shall, at any particular time, be principally
administered, which office is, at the date as of which this Indenture is dated, located at [·].
“Default” means any event that is
or with the passage of time or the giving of notice or both would be an Event of Default.
“Depositary” means [·],
its nominees, and their respective successors.
“Dollar” or “$” means
a dollar or other equivalent unit in such coin or currency of the United States as at the time shall be legal tender for the payment
of public and private debt.
“Event of Default” means any event
or condition specified as such in Section 5.01 which shall have continued for the period of time, if any, therein designated.
“Exchange Act” means the Securities
Exchange Act of 1934, as amended.
“GAAP” means generally accepted accounting
principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute
of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements
by such other entity as may be approved by a significant segment of the accounting profession of the United States, as in effect from
time to time. At any time after the Issue Date with respect to a series of Securities, the Company may elect to apply IFRS in lieu of
GAAP and, upon any such election, references in this Indenture to GAAP shall thereafter be construed to mean IFRS as in effect from time
to time. The Company shall give notice of any such election to the Trustee.
“Global Security” means a Security,
and any Guarantees endorsed thereon, evidencing all or part of a series of Securities and the corresponding Guarantees, if any, issued
to the Depositary for that series in accordance with Section 3.05 and bearing the appropriate legend prescribed in Section 3.06.
“Government Securities” means direct
obligations of, or obligations guaranteed by, the United States of America, and the payment for which the United States pledges its full
faith and credit.
“Guarantee” means with respect to
the Securities of any series, the Guarantee with respect to the Securities of such series by the applicable Guarantor or Guarantors pursuant
to Section 2.02 hereof and a supplemental indenture.
“Guarantor” means, with respect
to Securities of any series, any of the Company’s direct and indirect Subsidiaries, but only if such entity has guaranteed the
Company’s obligations under this Indenture and with respect to such series of Securities pursuant to Section 2.01 hereof;
provided that upon the release and discharge of any Person from its Guarantee in accordance with this Indenture or as specified
pursuant to Section 3.01, such Person shall cease to be a Guarantor.
“Holder,” “Holder of Securities”
or other similar terms mean the registered holder of any Security.
“IFRS” means International Financial
Reporting Standards promulgated by the International Accounting Standards Board (or any successor board or agency) and as adopted by
the European Union, as in effect from time to time.
“Indenture” means this indenture as
originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into
pursuant to the applicable provisions hereof and shall include the terms of particular series of Securities established as contemplated
hereunder.
“Interest Payment Date” means, when
used with respect to any Security, the Stated Maturity of an installment of interest on such Security.
“Issue Date” means, with respect to
Securities of a series, the first date on which the Securities of such series are originally issued under this Indenture.
“Maturity,” means, when used with
respect to any Security, the date on which the principal of such Security or an installment of principal becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Notice of Default” has the meaning
provided in Section 6.06.
“Officers’ Certificate” means
a certificate signed on behalf of the Company by an officer of the Company (or on behalf of a Guarantor by an officer of such Guarantor,
as the case may be) that meets the requirements of Section 15.06 hereof.
“Opinion of Counsel” means an opinion
in writing signed by legal counsel who may be an employee of or counsel to the Company or a Guarantor or who may be other counsel satisfactory
to the Trustee.
“outstanding” means, when used with
reference to Securities, subject to the provisions of Article 7, as of any particular time, all Securities authenticated and delivered
by the Trustee under this Indenture, except
(a) Securities
theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(b) Securities,
or portions thereof, for the payment or redemption of which moneys in the necessary amount shall have been deposited in trust with the
Trustee or with any Paying Agent (other than the Company or a Guarantor) or shall have been set aside, segregated and held in trust by
the Company or a Guarantor (if the Company or a Guarantor shall act as Paying Agent); provided that if such Securities are to
be redeemed prior to the maturity thereof, notice of such redemption shall have been given as herein provided, or provision satisfactory
to a Responsible Officer of the Trustee shall have been made for giving such notice;
(c) Securities
in substitution for which other Securities shall have been authenticated and delivered, or which shall have been paid, pursuant to the
terms of Section 3.09 (unless proof satisfactory to the Trustee and the Company is presented that any of such Securities is held
by a person in whose hands such Security is a legal, valid and binding obligation of the Company); and
(d) Securities
that have been defeased pursuant to Section 12.01.
“Paying Agent” means any Person authorized
by the Company to pay the principal of (and premium, if any) and interest, if any, on any Securities on behalf of the Company. The Company
or a Guarantor may act as Paying Agent with respect to any Securities issued hereunder.
“Payment Office” means, when used
with respect to the Securities of or within any series, the place or places where the principal of (and premium, if any) and interest
on such Securities are payable as specified pursuant to Section 3.01.
“Person” means any individual, corporation,
partnership, joint stock company, business trust, trust, unincorporated association, joint venture or other entity or organization, including
a government or political subdivision or an agency or instrumentality thereof.
“Physical Securities” means Securities
issued pursuant to Section 3.02 in exchange for interest in the Global Security or pursuant to Section 3.08(b) in registered
form substantially in the form hereinabove recited.
“Principal Amount” means, when used
with respect to any Security, the amount of principal of such Security that could then be declared due and payable pursuant to Section 5.02.
“Registrar” has the meaning provided
in Section 3.07.
“Regular Record Date” for the interest
payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 3.01.
“Responsible Officer” means, when
used with respect to the Trustee, any officer within the Corporate Trust Office of the Trustee including any vice president, any trust
officer, any assistant vice president, any assistant secretary, any assistant treasurer, or any other officer of the Trustee customarily
performing functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate
trust matter is referred because of his or her knowledge of and familiarity with the particular subject and who shall have direct responsibility
for the administration of this Indenture.
“Securities Act” means the Securities
Act of 1933, as amended.
“Security” or “Securities”
means any Security or Securities, as the case may be, authenticated and delivered under this Indenture.
“Security Register” has the meaning
provided in Section 3.07.
“Stated Maturity” means, when used
with respect to any Security or any installment of principal thereof or interest thereon, the date specified in such Security or a coupon
representing such installment of interest as the fixed date on which the principal of such Security or such installment of principal
or interest is due and payable.
“Subsidiary” means, as applied, with
respect to any Person, any corporation, partnership or other legal entity of which, in the case of a corporation, more than 50% of the
issued and outstanding capital stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective
of whether at the time capital stock of any other class or classes of such corporation has or might have voting power upon the occurrence
of any contingency), or, in the case of any partnership or other legal entity, more than 50% of the ordinary equity capital interests,
is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more of its other Subsidiaries or
by one or more of such Person’s other Subsidiaries.
“Trust Indenture Act” means the Trust
Indenture Act of 1939, as amended, as in force at the date as of which this Indenture was originally executed, and “TIA”
means, when used in respect of an indenture supplemental hereto, such Act as in force at the time such indenture supplemental hereto
becomes effective.
“Trustee” means the Person named as
the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder;
provided that if at any time there is more than one such Person, “Trustee” as used with respect to the Securities
of any series shall mean only the Trustee with respect to Securities of that series.
SECTION 1.02. Other
Definitions.
Term | |
Defined in Section | |
“Authorized Agent” | |
| 15.12 | |
“Covenant Defeasance” | |
| 12.03 | |
“Legal Defeasance” | |
| 12.02 | |
“Specified Courts” | |
| 15.12 | |
SECTION 1.03. Rules of
Construction.
Unless
the context otherwise requires:
(a) a
term has the meaning assigned to it;
(b) an
accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(c) “or”
is not exclusive;
(d) words
in the singular include the plural, and in the plural include the singular;
(e) provisions
apply to successive events and transactions; and
(f) all
references in this instrument to Articles and Sections are references to the corresponding Articles and Sections in and of this instrument
unless the context requires otherwise.
ARTICLE 2
SECURITY FORMS
SECTION 2.01. Forms
Generally. The Securities of each series, and all Guarantees endorsed thereon, if any, shall be in substantially the forms as shall
be established by or pursuant to a Board Resolution of the Company (and a Board Resolution of each Guarantor with respect to the Guarantees,
if any) or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and
such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently
herewith, be determined by the officers executing such Securities and Guarantees, if any, as evidenced by their execution of the Securities
and Guarantees. If the form of Securities of any series, and any Guarantees endorsed thereon, is established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of
the Company, and by the Secretary or Assistant Secretary of the Guarantors, if any, and delivered to the Trustee at or prior to the delivery
of the Company Order contemplated by Section 3.02 for the authentication and delivery of such Securities.
The Trustee’s certificate
of authentication on all Securities shall be in substantially the form set forth in this Article.
The definitive Securities of any series shall be
printed, lithographed or engraved on steel-engraved borders or may be produced in any other manner, all as determined by the officers
executing such Securities, as evidenced by their execution of such Securities.
SECTION 2.02. Guarantees
by Guarantor; Form of Guarantee; Release of Guarantee.
(a) Except
as otherwise specified in or pursuant to the Officers’ Certificate or supplemental indenture contemplated by Section 3.01(b),
the provisions of this Section 2.02 will be applicable to any series of Securities that is to be guaranteed by one or more Guarantors.
(b) Each
Guarantor by its execution of this Indenture hereby agrees with each Holder of a Security of each series that is guaranteed by such Guarantor
and authenticated and delivered by the Trustee and with the Trustee on behalf of each such Holder, to be unconditionally bound by the
terms and provisions of the Guarantee set forth below and authorizes the Trustee to confirm such Guarantee to the Holder of each such
Security by its execution and delivery of each such Security, with such Guarantee endorsed thereon, authenticated and delivered by the
Trustee.
Guarantees to be endorsed on the Securities shall,
subject to this Section 2.02, be in substantially the form set forth below:
GUARANTEE
OF
[GUARANTOR]
For value received, [·] (the “Guarantor”)
hereby unconditionally and irrevocably guarantees, jointly and severally, to the Holder of the Security upon which this Guarantee is endorsed
and to the Trustee on behalf of each such Holder the due and punctual payment of the principal of, premium, if any, interest and additional
amounts, if any, on such Security and the due and punctual payment of any sinking fund or analogous payments referred to therein, if any,
when and as the same shall become due and payable, whether on the Stated Maturity, by declaration of acceleration, call for redemption
or otherwise, according to the terms thereof and of the Indenture dated as of [·] among CytoSorbents Corporation (hereinafter called
the “Company,” which term includes any successor Person thereto under the Indenture), the Guarantors (as defined therein)
and [·], as trustee (the “Indenture” and as supplemented by any applicable supplemental indenture, the “Indenture”).
In case of the failure of the Company punctually to make any such payment of principal, premium, if any, or interest, and additional amounts,
if any, or any sinking fund or analogous payment, the Guarantor, for so long as this Guarantee shall be in effect, hereby agrees to cause
any such payment to be made to or to the order of the Trustee punctually when and as the same shall become due and payable, whether on
the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, and as if such payment were made by the Company.
The Guarantor hereby agrees, to the extent permitted
by law, that its obligations hereunder shall be as if it were the principal debtor and not merely surety, and shall be absolute and unconditional,
irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of such Security or the Indenture, any failure
to enforce the provisions of such Security or the Indenture, or any waiver, modification or indulgence granted to the Company with respect
thereto, by the Holder of such Security or the Trustee or any other circumstance which may otherwise constitute a legal or equitable discharge
of a surety or guarantor. The Guarantor hereby waives, to the extent permitted by law, diligence, presentment, demand of payment, filing
of claims with a court in the event of merger or bankruptcy of the Company, any right to require a proceeding first against the Company,
protest or notice with respect to such Security or the indebtedness evidenced thereby or with respect to any sinking fund or analogous
payment required under such Security and all demands whatsoever, and covenants that this Guarantee will not be discharged except by payment
in full of the principal of, premium, if any, and interest on such Security or as otherwise described in Section 2.02 of the Indenture.
This Guarantee shall be automatically and unconditionally
released on the terms set forth in Section 2.02(c) of the Indenture and such terms as have been specified pursuant to Section 3.01.
The Guarantor shall be subrogated to all rights
of the Holder of such Security and the Trustee against the Company in respect of any amounts paid to such Holder by the Guarantor pursuant
to the provisions of this Guarantee; provided that the Guarantor shall not be entitled to enforce, or to receive any payments arising
out of or based upon such right of subrogation until the principal of, premium, if any, and interest on all Securities of the same series
issued under the Indenture shall have been paid in full.
The Guarantor hereby agrees that its obligations
hereunder shall be direct, unconditioned and unsubordinated and will rank equally and ratably without preference and at least equally
with other senior unsecured and unsubordinated obligations of the Guarantor, except to the extent prescribed by law. The Holder of a guaranteed
Security will be entitled to payment under the Guarantee without taking any action whatsoever against the Company.
No reference herein to the Indenture and no provision
of this Guarantee or of the Indenture shall alter or impair the guarantee of the Guarantor, which is absolute and unconditional, of the
due and punctual payment of the principal of, premium, if any, and interest on, any additional amounts, and any sinking fund or analogous
payments with respect to, the Security upon which this Guarantee is endorsed.
This Guarantee shall not be valid or obligatory
for any purpose until the certificate of authentication of such Security shall have been manually executed by or on behalf of the Trustee
under the Indenture.
All terms used in this Guarantee that are defined
in the Indenture shall have the meanings assigned to them in the Indenture.
This Guarantee shall be governed by and construed
in accordance with the laws of the State of New York, but without giving effect to applicable principles of conflicts of law to the extent
that the application of the law of another jurisdiction would be required thereby.
Executed and dated the date on the face hereof.
[GUARANTOR]
(c) Release
of Guarantee.
(i) The
Guarantee of a Guarantor relating to a series of Securities shall be released automatically and unconditionally, and such Guarantor shall
be relieved of all of its obligations under its Guarantee of such Securities, (A) upon defeasance or discharge of such series of
Securities as provided in Article 12 or Article 13 of this Indenture, (B) if for any reason, such Guarantor ceases to be
a Subsidiary of the Company, or (C) in connection with any sale, disposition or transfer of all or substantially all of the assets
of that Guarantor (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such
transaction) the Company or a Subsidiary of the Company.
(ii) The
Guarantee of a Guarantor relating to a series of Securities shall be released automatically and unconditionally, and such Guarantor shall
be relieved of all of its obligations under its Guarantee of such Securities, in any additional circumstances provided in the terms of
the Securities of such series established pursuant to Section 3.01 of this Indenture and any relevant supplemental indenture.
(iii) At
such time as a Guarantor’s Guarantee is released with respect to any series of Securities, such Guarantor will no longer be considered
a “Guarantor” of such series of Securities.
(iv) The
Trustee shall promptly execute any documents reasonably requested by the Company or applicable Guarantor relating to a series of Securities
in order to evidence the release of such Guarantor from its obligations under its Guarantee of the Securities of such series; provided
that the Trustee shall not be obligated to execute or deliver any document evidencing the release of a Guarantee pursuant to this
Section 2.02(c) unless the Company has delivered an Officers’ Certificate or an Opinion of Counsel to the effect that
such release is in accordance with the provisions of this Indenture.
SECTION 2.03. Form of
Trustee’s Certificate of Authentication. The Trustee’s certificate of authentication shall be substantially in the following
form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
|
[____________________________], |
|
as Trustee |
|
|
|
By: |
|
|
|
Authorized Signatory |
ARTICLE 3
ISSUE, EXECUTION, FORM AND REGISTRATION OF
SECURITIES
SECTION 3.01. Amount
Unlimited; Issuable in Series.
(a) The
aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
(b) The
Securities may be issued from time to time in one or more series. Prior to the issuance of Securities of any series, there shall be established
in or pursuant to (i) a Board Resolution of the Company and each Guarantor, if any, of the Securities of such series, (ii) action
taken pursuant to a Board Resolution and (subject to Sections 3.03 and 3.04) set forth, or determined in the manner provided, in
an Officers’ Certificate of the Company and each Guarantor, if any, of the Securities of such series, or (iii) one or more
indentures supplemental hereto:
(1) the
title of the Securities of the series (which shall distinguish the Securities of the series from all other Securities);
(2) whether
or not such Securities are to be guaranteed pursuant to Section 2.02 and, if so, the Guarantor or Guarantors thereof;
(3) the
purchase price, denomination and any limit upon the aggregate principal amount of the Securities of the series which may be authenticated
and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the series pursuant to Sections 3.07, 3.09, 3.11, 9.05 or 11.03);
(4) the
date or dates on which the principal of and premium, if any, on the Securities of the series is payable or the method of determination
thereof;
(5) the
rate or rates at which the Securities of the series shall bear interest, if any, or the method of calculating such rate or rates of interest,
the date or dates from which such interest shall accrue or the method by which such date or dates shall be determined, the Interest Payment
Dates on which any such interest shall be payable and the Regular Record Date, if any, for the interest payable on any Interest Payment
Date;
(6) the
place or places where the principal of (and premium, if any) and interest, if any, on Securities of the series shall be payable;
(7) the
place or places where the Securities may be exchanged or transferred;
(8) the
period or periods within which, the price or prices at which, the currency or currencies (including currency unit or units) in which,
and the other terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company,
if the Company is to have that option, and, if other than as provided in Section 11.02, the manner in which the particular Securities
of such series (if less than all Securities of such series are to be redeemed) are to be selected for redemption;
(9) the
obligation, if any, of the Company to redeem or purchase Securities of the series in whole or in part pursuant to any sinking fund or
analogous provisions or upon the happening of a specified event or at the option of a Holder thereof and the period or periods within
which, the price or prices at which, and the other terms and conditions upon which Securities of the series shall be redeemed or purchased,
in whole or in part, pursuant to such obligation;
(10) if
other than denominations of $2,000 and multiples of $1,000 in excess thereof, the denominations in which Securities of the series shall
be issuable;
(11) if
other than Dollars, the currency or currencies (including currency unit or units) in which payments of principal of (and premium, if any)
and interest, if any, on the Securities of the series shall or may by payable, or in which the Securities of the series shall be denominated,
and the particular provisions applicable thereto;
(12) if
the payments of principal of (and premium, if any) and interest, if any, on the Securities of the series are to be made, at the election
of the Company or a Holder, in a currency or currencies (including currency unit or units) other than that in which such Securities are
denominated or designated to be payable, the currency or currencies (including currency unit or units) in which such payments are to be
made, the terms and conditions of such payments and the manner in which the exchange rate with respect to such payments shall be determined,
and the particular provisions applicable thereto;
(13) if
the amount of payments of principal of (and premium, if any) and interest, if any, on the Securities of the series shall be determined
with reference to any commodities, currencies or indices, values, rates or prices or any other index, formula or method (which index,
formula or method may be based, without limitation, on a currency or currencies (including currency unit or units) other than that in
which the Securities of the series are denominated or designated to be payable), the manner in which such amounts shall be determined;
(14) if
other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration
of acceleration of the Maturity thereof pursuant to Section 5.02 or the method by which such portion shall be determined;
(15) any
modifications of or additions to the Events of Default set forth in Section 5.01 or the covenants of the Company set forth in Article 4
or Article 10 with respect to Securities of the series; and whether such additional or modified Events of Default or covenants are
subject to covenant defeasance pursuant to Section 12.03;
(16) if
either or both of Section 12.02 and Section 12.03 shall be inapplicable to the Securities of the series (provided that
if no such inapplicability shall be specified and the Securities of such series are not convertible into or their value is not determined
with reference to the Company’s equity securities, then both Section 12.02 and Section 12.03 shall be applicable to the
Securities of such series; provided further that if no such inapplicability shall be specified and the Securities of such series
are convertible into or their value is determined with reference to the Company’s equity securities, then neither Section 12.02
nor Section 12.03 shall be applicable to the Securities of such series) and any other terms upon which the Securities of such series
will be defeasible;
(17) if
other than the Trustee, the identity of the Registrar and any Paying Agent;
(18) if
the Securities of the series shall be issued in whole or in part in global form, (i) the Depositary for such global Securities, (ii) the
form of any legend in addition to or in lieu of that in Section 3.06 which shall be borne by such global Security, (iii) whether
beneficial owners of interests in any Securities of the series in global form may exchange such interests for certificated Securities
of such series and of like tenor of any authorized form and denomination, and (iv) if other than as provided in Section 3.08,
the circumstances under which any such exchange may occur;
(19) if,
and the terms and conditions upon which, the Securities of such series may or must be converted into securities of the Company or exchanged
for securities of the Company or another enterprise; and
(20) any
other terms of the series or any Guarantees endorsed thereon (which terms shall not adversely affect a prior series of Securities).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided (i) by a Board Resolution of the Company, (ii) by
action taken pursuant to a Board Resolution of the Company and (subject to Sections 3.02-3.05) set forth, or determined in the manner
provided, in an Officers’ Certificate or (iii) in any such indenture supplemental hereto. All Securities of any one series
need not be issued at the same time and, unless otherwise provided, a series may be reopened, without the consent of the Holders, for
issuances of additional Securities of such series.
If any of the terms of the Securities of any series,
and any Guarantees endorsed thereon, are established by action taken pursuant to a Board Resolution of the Company and the Guarantors,
if any, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and
the Guarantors, if any, and delivered to the Trustee at or prior to the delivery of the Officers’ Certificate setting forth, or
providing the manner for determining, the terms of the Securities of such series, and an appropriate record of any action taken pursuant
thereto in connection with the issuance of any Securities of such series shall be delivered to the Trustee prior to the authentication
and delivery thereof.
SECTION 3.02. Authentication
and Delivery of Securities. Upon the execution and delivery of this Indenture, or from time to time thereafter, Securities of any
series and any Guarantees endorsed thereon may be executed by the Company and the Guarantors, if any, and delivered by the Company to
the Trustee for authentication, together with a Company Order, and upon delivery to the Trustee of all documents and certificates as required
by this Indenture, the Trustee shall thereupon, in accordance with such Company Order, authenticate and make available for delivery said
Securities.
SECTION 3.03. Execution of Securities. The Securities of each series shall be
executed on behalf of the Company, and each of the Guarantees, if any, shall be executed on behalf of the applicable Guarantor, by the
Executive Chairman of the Board of Directors, the President, the Chief Executive Officer, the Chief Financial Officer, the Treasurer,
the Secretary or any Assistant Secretary of the Company or of such Guarantor, as the case may be. The signatures of any of such officers
on the Securities or the Guarantees may be the manual or facsimile signatures of the present or any future such officers. In case any
officer of the Company or of each Guarantor, if any, who shall have signed any of the Securities and Guarantees, if any, shall cease to
be such officer before the Security so signed or to which the Guarantee relates shall be authenticated and delivered by the Trustee or
disposed of by the Company, such Security nevertheless may be authenticated and delivered or disposed of as though the person who signed
such Security or Guarantee had not ceased to be such officer of the Company or of such Guarantor, as the case may be; and any Security
or Guarantee may be signed on behalf of the Company or of a Guarantor, if any, by such persons as shall be the proper officers of the
Company or of such Guarantor, as the case may be, at the actual date of the execution of such Security or Guarantee even though any such
person was not such officer at the date of the execution and delivery of this Indenture.
SECTION 3.04. Certificate
of Authentication. Only such Securities or Guarantees endorsed thereon, if any, as shall bear thereon a certificate of authentication
substantially in the form hereinabove recited, executed by the Trustee by manual signature of one of its authorized signatories, shall
be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee upon any Security
executed by the Company 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.
SECTION 3.05. Denomination,
Currency and Date of Securities; Payments of Interest.
(a) The
Securities shall be issuable in such denominations and currency as shall be specified as contemplated by Section 3.01. In the absence
of any specification pursuant to Section 3.01 with respect to Securities of any series, the Securities of such series shall be denominated
in Dollars, issuable only as Securities in denominations of $2,000 and multiples of $1,000 in excess thereof and payable only in Dollars.
The Securities shall be numbered, lettered, or otherwise distinguished in such manner or in accordance with such plans as the officers
of the Company executing the same may determine with the approval of the Trustee.
Any of the Securities and Guarantees, if any, may
be issued with appropriate insertions, omissions, substitutions and variations, and may have imprinted or otherwise reproduced thereon
such legend or legends, not inconsistent with the provisions of this Indenture, as may be required to comply with any law or with any
rules or regulations pursuant thereto, including those required by Section 3.06, or with the rules of any securities market
in which the Securities are admitted to trading, or to conform to general usage.
Each Security shall be dated the date of its authentication,
shall bear interest from the applicable date and shall be payable on the dates specified on the face of the form of Security above. Except
as otherwise specified as contemplated by Section 3.01 for Securities of any series, interest on the Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
(b) Global
Securities. If Securities of or within a series are issuable in whole or in part in global form, then any such Security of such series
shall be deposited with the Trustee as custodian for the Depositary and registered in the name of [Cede & Co.], as nominee for
the Depositary. The Global Security shall be deposited on behalf of the purchasers of the Securities represented thereby with the Trustee,
as custodian for the Depositary (or with such other custodian as the Depositary may direct), and registered in the name of the Depositary
or a nominee of the Depositary, duly executed by the Company and each Guarantor, if any, and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the Global Securities may from time to time be increased or decreased by adjustments made
on the records of the Trustee and the Depositary or its nominee as hereinafter provided.
(c) The
person in whose name any Security is registered at the close of business on any Regular Record Date with respect to any Interest Payment
Date shall be entitled to receive the interest, if any, payable on such Interest Payment Date notwithstanding any transfer or exchange
of such Security subsequent to the Regular Record Date and prior to such Interest Payment Date, except if and to the extent the Company
or a Guarantor, if any, shall default in the payment of the interest due on such Interest Payment Date, in which case such defaulted interest,
plus (to the extent lawful) any interest payable on the defaulted interest, shall be paid to the persons in whose names outstanding Securities
are registered at the close of business on a subsequent record date (which shall be not less than five Business Days prior to the date
of such payment) established by notice given by mail by or on behalf of the Company or such Guarantor to the Holders of Securities not
less than 15 calendar days preceding such subsequent record date.
SECTION 3.06. Global
Security Legend. Any Security in global form authenticated and delivered hereunder shall bear a legend in substantially the following
form, or in such other form as may be necessary or appropriate to reflect the arrangements with or to comply with the requirements of
any Depositary:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS
OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF [CEDE & Co.] OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [·]
(AND ANY PAYMENT HEREON IS MADE TO [CEDE & Co.] OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [·]),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, [CEDE &
Co.], HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE.
SECTION 3.07. Registration,
Transfer and Exchange. The Securities are issuable only in registered form. The Company will keep at each office or agency (the “Registrar”)
for each series of Securities a register or registers (the “Security Register(s)”) in which, subject to such reasonable regulations
as it may prescribe, it will register, and will register the transfer of Securities as provided in this Article. Such Security Register
or Security Registers shall be in written form in the English language or in any other form capable of being converted into such form
within a reasonable time. At all reasonable times such Security Register or Security Registers shall be open for inspection by the Trustee.
The initial Registrar shall be the Trustee.
Upon due presentation for registration of transfer of any Security of any series at each such
office or agency, the Company shall execute a new Security or Securities of the same series, in each case, of any authorized denominations
and of a like aggregate Principal Amount in the name of the designated transferee or transferees, the applicable Guarantors, if any, shall
execute the Guarantees endorsed thereon and, upon receipt of a Company Order, the Trustee shall authenticate and make available for delivery
such Securities.
At the option of the Holder, Securities of any
series (except a Security in global form) may be exchanged for other Securities of the same series, of any authorized denominations and
of a like aggregate Principal Amount and Stated Maturity, upon surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute the Securities which the Holder making the exchange is entitled
to receive, the applicable Guarantors, if any, shall execute the Guarantees endorsed thereon and, upon receipt of a Company Order, the
Trustee shall authenticate and make available for delivery such Securities.
A Holder may transfer a Security only by written
application to the Registrar stating the name of the proposed transferee and otherwise complying with the terms of this Indenture. No
such transfer shall be effected until, and such transferee shall succeed to the rights of a Holder only upon, final acceptance and registration
of the transfer by the Registrar in the Security Register. Prior to the registration of any transfer by a Holder as provided herein, the
Company, the Guarantors, if any, and the Trustee or any of their respective agents shall treat the person in whose name the Security is
registered as the owner thereof for all purposes whether or not the Security shall be overdue, and neither the Company, the Guarantors,
if any, the Trustee, nor any such agent shall be affected by notice to the contrary. Furthermore, any Holder of a Global Security shall,
by acceptance of such Global Security, agree that transfers of beneficial interests in such Global Security may be effected only through
a book entry system maintained by the Depository (or its nominee) and that ownership of a beneficial interest in the Security shall be
required to be reflected in a book entry. When Securities are presented to the Registrar or a co-Registrar with a request to register
the transfer or to exchange them for an equal Principal Amount of Securities of other authorized denominations, the Registrar shall register
the transfer or make the exchange as requested if the requirements for such transactions set forth herein are met. To permit registrations
of transfers and exchanges, the Company shall execute the Securities, the applicable Guarantors, if any, shall execute the Guarantees
endorsed thereon and the Trustee shall authenticate Securities at the Registrar’s request.
The Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection with any exchange or registration of transfer of Securities
(other than any such transfer taxes or other similar governmental charge payable upon exchanges pursuant to Section 3.11, 9.05 or
11.03). No service charge to any Holder shall be made for any such transaction.
The Company shall not be required to exchange or
register a transfer of (a) any Securities of any series for a period of 15 calendar days next preceding the first mailing of
notice of redemption of Securities of that series to be redeemed, or (b) any Securities of any series selected, called or being called
for redemption except, in the case of any Security of any series where public notice has been given that such Security is to be redeemed
in part, the portion thereof not so to be redeemed.
All Securities issued upon any transfer or exchange
of Securities shall be valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture,
as the Securities surrendered upon such transfer or exchange.
SECTION 3.08. Book-Entry
Provisions for Global Securities.
(a) Each
Global Security initially shall (i) be registered in the name of the Depositary for such Global Securities or the nominee of such
Depositary, (ii) be delivered to the Trustee as custodian for such Depositary and (iii) bear legends as set forth in Section 3.06.
Members of, or participants in, the Depositary
(“Agent Members”) shall have no rights under this Indenture with respect to any Global Security held on their behalf by the
Depositary, or the Trustee as its custodian, or under the Global Security, and the Depositary may be treated by the Company, each Guarantor,
if any, the Trustee and any of their respective agents as the absolute owner of such Global Security for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Company, each such Guarantor, the Trustee or any of such agents from giving effect to
any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent
Members, the operation of customary practices governing the exercise of the rights of a holder of any Security.
(b) Transfers
of a Global Security shall be limited to transfers of such Global Security in whole, but not in part, to the Depositary for such series,
its successors or their respective nominees. The Company may at any time and in its sole discretion determine that the Securities of a
series issued in the form of one or more Global Securities shall no longer be represented by such Global Securities. In such event, the
Company will execute Securities of such series of like tenor and terms in definitive form in an aggregate Principal Amount equal to the
Principal Amount of the Global Security or Securities of such series, the applicable Guarantors, if any, shall execute the Guarantees
endorsed thereon and the Trustee, upon receipt of a Company Order, will authenticate and deliver such definitive Securities in exchange
for such Global Security or Securities. Interests of beneficial owners in a Global Security may be transferred in accordance with the
rules and procedures of the Depositary.
In addition, Physical Securities shall be transferred
to all beneficial owners identified by the Depositary in exchange for their beneficial interests in a Global Security, if (i) the
Depositary (A) notifies the Company that it is unwilling or unable to continue as Depositary for such Global Security, and a successor
depositary is not appointed by the Company within 90 calendar days of such notice, or (B) ceases to be qualified to serve as
Depositary and a successor depositary is not appointed by the Company within 90 calendar days of such notice, (ii) the Company
executes and delivers to the Trustee a Company Order that such Global Security shall be so transferable, registrable and exchangeable,
and such transfers shall be registrable, or (iii) an Event of Default of which the Trustee has actual notice has occurred and is
continuing and the Registrar has received a request from a beneficial owner to issue such Physical Securities, and if the Trustee is the
Registrar, a Company Order or written confirmation from the Depositary identifying the beneficial owner.
(c) Any
beneficial interest in one of the Global Securities that is transferred to a person who takes delivery in the form of an interest in the
other Global Security will, upon transfer, cease to be an interest in such Global Security and become an interest in the other Global
Security and, accordingly, will thereafter be subject to all transfer restrictions, if any, and other procedures applicable to beneficial
interests in such other Global Security for as long as it remains such an interest.
(d) In
connection with any transfer of a portion of the beneficial interests in a Global Security to beneficial owners pursuant to paragraph
(b) of this Section 3.08, the Registrar shall reflect on its books and records the date and a decrease in the Principal Amount
of such Global Security in an amount equal to the Principal Amount of the beneficial interest in such Global Security to be transferred,
and the Company shall execute, and the Trustee shall authenticate and make available for delivery, one or more Physical Securities of
like tenor and amount.
(e) In
connection with the transfer of an entire Global Security to beneficial owners pursuant to paragraph (b) of this Section, such Global
Security shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and upon receipt of a Company
Order the Trustee shall authenticate and deliver, to each beneficial owner identified by the Depositary in exchange for its beneficial
interest in such Global Security, an equal Principal Amount of Physical Securities of authorized denominations.
(f) The
registered holder of a Global Security may grant proxies and otherwise authorize any person, including Agent Members and persons that
may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Securities
of such series.
SECTION 3.09. Mutilated,
Defaced, Destroyed, Lost and Stolen Securities. In case any temporary or definitive Security shall become mutilated, defaced or be
apparently destroyed, lost or stolen, the Company in its discretion may execute a new Security of the same series bearing a number not
contemporaneously outstanding, the applicable Guarantors, if any, shall execute the Guarantees endorsed thereon and, upon the written
request of any officer of the Company and delivery to the Trustee of all documents and certificates as required by this Indenture, the
Trustee shall authenticate and make available for delivery such Security, in exchange and substitution for the mutilated or defaced Security,
or in lieu of and substitution for the Security so apparently destroyed, lost or stolen. In every case the applicant for a substitute
Security shall furnish to the Company, each Guarantor, if any, the Trustee and any of their respective agents, such security or indemnity
as may be required by each of them to indemnify and defend and to save each of them harmless and, in every case of destruction, loss or
theft evidence to their satisfaction of the apparent destruction, loss or theft of such Security and of the ownership thereof.
Upon the
issuance of any substitute 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 which has matured or is about to mature, or has been called for redemption in full, shall become mutilated or defaced
or be apparently destroyed, lost or stolen, the Company may, instead of issuing a substitute Security of the same series, pay or authorize
the payment of the same (without surrender thereof except in the case of a mutilated or defaced Security), if the applicant for such payment
shall furnish to the Company, each Guarantor, if any, the Trustee and any of their respective agents such Security or indemnity as any
of them may require to save each of them harmless from all risks, however remote, and, in every case of apparent destruction, loss or
theft, the applicant shall also furnish to the Company, each such Guarantor, the Trustee and any of such agents evidence to their satisfaction
of the apparent destruction, loss or theft of such Security and of the ownership thereof.
Every substitute Security and the Guarantee endorsed
thereon, if any, issued pursuant to the provisions of this Section by virtue of the fact that any Security is apparently destroyed,
lost or stolen shall constitute an additional contractual obligation of the Company and any Guarantor, as applicable, whether or not the
apparently destroyed, lost or stolen Security shall be at any time enforceable by anyone and shall be entitled to all the benefits of
(but shall be subject to all the limitations of rights set forth in) this Indenture equally and proportionately with any and all other
Securities and the Guarantees endorsed thereon, if any, duly authenticated and delivered hereunder. All Securities shall be held and owned
upon the express condition that, to the extent permitted by law, with respect to the holder of a substitute Security, the foregoing provisions
are exclusive with respect to the replacement or payment of mutilated, defaced, or apparently destroyed, lost or stolen Securities and
shall preclude 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 3.10. Cancellation
of Securities. All Securities surrendered for payment, redemption, registration of transfer or exchange, if surrendered to the Company,
any Guarantor, the Trustee or any of their respective agents, shall 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 permitted by any of the provisions
of this Indenture. The Trustee shall dispose of cancelled Securities in accordance with its customary procedures. If the Company or any
Guarantor shall acquire any of the Securities, 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 3.11. Temporary
Securities. Pending the preparation of definitive Securities of any series, the Company may execute and the Trustee shall authenticate
and make available for delivery temporary Securities of such series (printed, lithographed, typewritten or otherwise reproduced, in each
case in form satisfactory to the Trustee). Temporary Securities shall be issuable as registered Securities of such series without coupons,
of any authorized denomination, and substantially in the form of the definitive Securities of such series, and if the Securities are to
be guaranteed, having endorsed thereon the Guarantees executed by each Guarantor, but in all cases with such appropriate omissions, insertions
and variations as may be appropriate for temporary Securities, all as may be determined by the Company and the Guarantors, if any, with
the concurrence of the Trustee. Temporary Securities may contain such reference to any provisions of this Indenture as may be appropriate.
Every temporary Security shall be executed by the Company and endorsed by each Guarantor, if any, 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
unreasonable delay the Company shall execute and shall furnish definitive Securities of such series and thereupon temporary Securities
of such series may be surrendered in exchange therefor without charge at each office or agency to be maintained by the Company for the
purpose pursuant to Section 4.02, and upon delivery to the Trustee of all documents and certificates as required by this Indenture,
the Trustee shall authenticate and make available for delivery in exchange for such temporary Securities a like aggregate principal amount
of definitive Securities of such series of authorized denominations, and if the Securities are guaranteed, having endorsed thereon the
Guarantees executed by each Guarantor. 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.
SECTION 3.12. CUSIP and ISIN Numbers.
The Company in issuing the Securities of any series may use a “CUSIP” and “ISIN” number (if then generally in
use), and, if so, the Trustee shall use the CUSIP numbers or ISIN numbers, as the case may be, in notices of redemption or exchange as
a convenience to Holders of such series; provided that any such notice shall 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 redemption or exchange and that reliance may be placed
only on the other identification numbers printed on the Securities and any such redemption shall not be affected by any defect in or omission
of such numbers. The Company shall promptly notify the Trustee of any change in the CUSIP numbers or ISIN numbers.
ARTICLE 4
CERTAIN COVENANTS
SECTION 4.01. Payment
of Principal, Premium and Interest on Securities. The Company, for the benefit of each series of the Securities, will duly and punctually
pay or cause to be paid the principal of and any premium and interest on the Securities of that series in accordance with the terms of
such Securities and this Indenture.
SECTION 4.02. Maintenance of Office or Agency. The Company
will maintain a Payment Office where Securities may be presented or surrendered for payment, where Securities may be surrendered for registration
of transfer or exchange, and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served.
The Company will give prompt written notice to the Trustee of the location, and any change in the location of, such office or agency.
If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby initially appoints the Trustee at its office or agency as its agent to receive all such presentations, surrenders, notices
and demands.
The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more
series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided
that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in accordance
with the requirements set forth above for Securities of any series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
SECTION 4.03. Money
for Securities Payments to be Held in Trust.
(a) If
the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date
of the principal of or any premium or interest on any of the Securities of that series, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due until such sums shall
be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to
act.
(b) 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 or
any premium or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to
be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee
of its action or failure so to act.
(c) The
Company will cause each Paying Agent for any series of Securities (other than the Trustee) to execute and deliver to the Trustee an instrument
in which such Paying Agent will agree with the Trustee, subject to the provisions of this Section 4.03, that such Paying Agent will
(i) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent; (ii) hold all sums held by it
for the payment of the principal of (and premium, if any) or interest, if any, on the Securities of that series in trust for the benefit
of the Holders until such sums shall be paid to such Holders or otherwise disposed of as herein provided; (iii) give the Trustee
notice of any Default by the Company or any Guarantor (or any other obligor upon the Securities) in the making of any payment of principal
(and premium, if any) or interest, if any, on the Securities of that series; and (iv) during the continuance of any Default by the
Company (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series,
and upon the written request of that Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
(d) The
Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums
to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon
such payment by any Paying Agent to the Trustee, such Paying Agent will be released from all further liability with respect to such money.
(e) Any
money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of or any
premium or interest on any Security of any series and remaining unclaimed for two years after such principal, premium, or interest has
become due and payable and was deposited with the Paying Agent will be paid to the Company upon a Company Request (or, if then held by
the Company, will be discharged from such trust) subject to any applicable abandoned property law; and the Holder of such Security will
thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money will thereupon cease.
SECTION 4.04. Existence.
Subject to Article 10, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect
its existence and rights (charter and statutory); provided that the Company will not be required to preserve any such right or
franchise if the Board of Directors determines that the preservation thereof is no longer desirable in the conduct of the business of
the Company and that the loss thereof will not be disadvantageous in any material respect to the Holders.
SECTION 4.05. Statement
by Officers as to Default. The Company and, to the extent required by the TIA, each Guarantor, if any, will deliver to the Trustee,
within 120 calendar days after the end of each fiscal year of the Company ending after the first date any series of Securities issued
under this Indenture is outstanding, a certificate signed by the principal executive officer, principal financial officer or principal
accounting officer of the Company or such Guarantor stating whether or not to the knowledge of such person after due inquiry the Company
or such Guarantor is in default in the performance and observance of any of the terms, provisions, and conditions of this Indenture (without
regard to any period of grace or requirement of notice provided hereunder) and, if the Company or such Guarantor is in default, specifying
all such defaults and the nature and status thereof of which such person may have such knowledge. The Company or such Guarantor shall
deliver to the Trustee, as soon as possible and in any event within seven calendar days after any such aforementioned officer of the Company
or such Guarantor becomes aware of the occurrence of any Event of Default or an event which, with notice or the lapse of time or both,
would constitute an Event of Default, an Officers’ Certificate setting forth the details of such Event of Default or default and
the action which the Company or such Guarantor proposes to take with respect thereto.
SECTION 4.06. Waiver
of Certain Covenants. The Company and each Guarantor, if any, may omit in any particular instance to comply with any term, provision,
or condition set forth in this Indenture or any applicable supplemental indenture, with respect to the Securities of any series, if the
Holders of a majority in Principal Amount of all outstanding Securities of such series shall, by act of such Holders in accordance with
Section 7.01, either waive such compliance in such instance or generally waive compliance with such term, provision, or condition
in accordance with Article 9 and Section 5.07, but no such waiver will extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and such Guarantor
and the duties of the Trustee in respect of any such term, provision, or condition will remain in full force and effect.
ARTICLE 5
REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF
DEFAULT
SECTION 5.01. Events
of Default. Each of the following events constitutes an “Event of Default” wherever used herein with respect to Securities
of any series:
(a) default for 30 calendar days in the payment when due of interest on the Securities
of that series;
(b) default
in payment when due of the principal (whether at Stated Maturity, upon redemption (if applicable), upon any required repurchase by the
Company (if applicable) or otherwise) of or premium, if any, on the Securities of that series;
(c) default
by the Company or any Guarantor of such series of Securities in the observance or performance of any other covenant or agreement contained
in this Indenture or as specified pursuant to Section 3.01 (other than a default referred to in clauses (a) or (b) above,
or an agreement, covenant or provision that has expressly been included in this Indenture solely for the benefit of one or more series
of Securities other than that series) which default continues for a period of 60 calendar days after the Company or such Guarantor receives
written notice specifying the default (and demanding that such default be remedied) from the Trustee or the Holders of at least 25% of
the Principal Amount of Securities of that series then outstanding (with a copy to the Trustee if given by Holders) (except in the case
of a default with respect to Section 10.01 of this Indenture, which will constitute an Event of Default with such notice requirement
but without such passage of time requirement).
(d) the
entry by a court having jurisdiction in the premises of (i) a decree or order for relief in respect of the Company or a Guarantor
of such series of Securities in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization,
or other similar law or (ii) a decree or order adjudging the Company or such Guarantor bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment, or composition of or in respect of the Company or such Guarantor under
any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar
official of the Company or such Guarantor or of any substantial part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period
of 60 consecutive calendar days;
(e) the
commencement by the Company or a Guarantor of such series of Securities of a voluntary case or proceeding under any applicable federal
or state bankruptcy, insolvency, reorganization, or other similar law or of any other case or proceeding to be adjudicated bankrupt or
insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company or such Guarantor in an involuntary
case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or to the commencement
of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization
or relief with respect to the Company or such Guarantor under any applicable federal or state bankruptcy, insolvency, reorganization,
or other similar law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator, or other similar official of the Company or such Guarantor or of any substantial
part of its property pursuant to any such law, or the making by it of an assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company or such
Guarantor in furtherance of any such action;
(f) any
Guarantee relating to such series Securities shall cease to be in full force and effect (other than in accordance with the terms of this
Indenture) or any Guarantor denies or disaffirms its obligations under its Guarantee; or
(g) any
other Event of Default with respect to Securities of that series as specified pursuant to Section 3.01, which shall not have been
remedied within the specified period after written notice, as specified in Section 5.01(c).
SECTION 5.02. Acceleration.
(a) If
any Event of Default (other than an Event of Default specified in clause (d) or (e) of Section 5.01) occurs and is continuing
with respect to Securities of any series, the Trustee by written notice to the Company or the Holders of at least 25% in aggregate Principal
Amount of the then outstanding Securities of that series by written notice to the Company and the Trustee, may declare the unpaid principal
of, premium, if any, and any accrued and unpaid interest on all the Securities of the affected series to be due and payable immediately.
Except as set forth above, upon such declaration the principal of, premium, if any, and interest shall be due and payable immediately.
If an Event of Default specified in clause (d) or (e) of Section 5.01 occurs with respect to the Company or any Guarantor,
the unpaid principal of, premium, if any, and any accrued and unpaid interest on all the Securities shall ipso facto become and
be immediately due and payable without further action or notice on the part of the Trustee or any Holder.
(b) At
any time after such a declaration of acceleration with respect to the Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article 5 provided, the Holders of a
majority in Principal Amount of the outstanding Securities of such series, by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if (i) the Company or a Guarantor has paid or deposited with the Trustee a sum sufficient
to pay (A) all overdue interest on all of the Securities of that series, (B) the principal of (and premium, if any, on) Securities
of that series which has become due otherwise than by such declaration of acceleration and any interest thereon at the rate or rates prescribed
therefor in the Securities of that series, (C) to the extent that payment of such interest is lawful, interest upon overdue interest
at the rate or rates prescribed therefor in the Securities of that series, and (D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and advances of the Trustee and its agents and counsel and (ii) all Events
of Default with respect to the Securities of that series, other than the non-payment of the principal of the Securities of that series
which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.04. No such
rescission will affect any subsequent default or impair any right consequent thereon.
SECTION 5.03. Other
Remedies. If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may pursue any available
remedy to collect the payment of principal or interest on the Securities of such series or to enforce the performance of any provision
of the Securities of such series or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Securities
of such series or does not produce any of them in the proceeding and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities
in respect of which such judgment has been recovered. A delay or omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default.
All remedies are cumulative to the extent permitted by law.
SECTION 5.04. Waiver
of Past Defaults. The Holders of not less than a majority in aggregate Principal Amount of the Securities of any series then outstanding
by written notice to the Trustee may on behalf of the Holders of all of the Securities of such series waive any existing Default or Event
of Default and its consequences under this Indenture except a continuing Default or Event of Default in the payment of the principal (whether
at Stated Maturity, upon redemption (if applicable), upon any required repurchase by the Company (if applicable) or otherwise) of (and
premium, if any) or interest, if any, on any Security of such series or, in the case of the Securities of any series that are convertible
or exchangeable, in the payment or delivery of any consideration due upon conversion or exchange of the Securities of that series (if
applicable). The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Persons entitled to
waive any past Default hereunder. If a record date is fixed, the Holders on such record date, or their duly designated proxies, and only
such Persons, shall be entitled to waive any Default hereunder, whether or not such Holders remain Holders after such record date. Upon
any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for
every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
SECTION 5.05. Control
by Majority. With respect to the Securities of any series, the Holders of a majority in aggregate Principal Amount of the then outstanding
Securities of that series may 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 it. However, the Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that the Trustee in good faith determines may be unduly prejudicial to the rights of other Holders of that series or that may
involve or cause the Trustee any potential liability. The Trustee may take any other action which it deems proper which is not inconsistent
with any such direction.
SECTION 5.06. Limitation on Suits. A Holder of any Security of any
series may pursue a remedy with respect to this Indenture or the Securities of the applicable series only if:
(a) the
Holder gives to the Trustee written notice of a continuing Event of Default with respect to that series;
(b) the
Holders of at least 25% in aggregate Principal Amount of the then outstanding Securities of that series make a written request to the
Trustee to pursue the remedy;
(c) such
Holder or Holders provide to the Trustee indemnity satisfactory to the Trustee against any loss, liability or expense in connection with
the pursuance of such remedy;
(d) during
the 60-day period specified in (e) below, the Holders of a majority in aggregate Principal Amount of the then outstanding Securities
of such series do not give the Trustee a direction inconsistent with the request; and
(e) the
Trustee does not comply with the request within 60 calendar days after receipt of the notice, request and the offer of indemnity.
Holders shall not have any right in any manner
whatever by virtue of, or by availing of, any provision of this Indenture or any Security to affect, disturb or prejudice the rights of
any other such Holders or Holders of Securities of any other series, or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit
of all such Holders.
SECTION 5.07. Rights
of Holders to Receive Payment. Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of
principal (whether at Stated Maturity, upon redemption (if applicable), upon any required repurchase by the Company (if applicable) or
otherwise) of (and premium, if any) and interest, if any, on any Security or, if applicable, payment or delivery of any consideration
due upon conversion or exchange of any Security, in each case, on or after the respective due dates expressed in such Security, or to
bring suit for the enforcement of any such payment or delivery on or after such respective dates, shall not be impaired or affected without
the consent of the Holder.
SECTION 5.08. Collection Suit by Trustee. If an Event of Default
specified in Sections 5.01(a) or 5.01(b) occurs and is continuing, the Trustee is authorized to recover judgment in its own
name and as trustee of an express trust against the Company, any Guarantor or any other obligor for the whole amount of principal (and
premium, if any) and interest, if any, remaining unpaid on any Securities of such series and interest on overdue principal and, to the
extent lawful, interest and such further amount as shall be sufficient to cover amounts due the Trustee under Section 6.07 hereof,
including the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
SECTION 5.09. Trustee May File Proofs of Claim. The Trustee
is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders allowed in any judicial proceedings relative to the Company or any Guarantor (or any other obligor upon the Securities),
its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money or other property payable
or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 6.07 hereof. To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.07 hereof
out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a lien on, and shall
be paid out of, any and all distributions, dividends, money, securities and other properties which the Holders may be entitled to receive
in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities of any series or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Holder in any such proceeding.
SECTION 5.10. Priorities. If
the Trustee collects any money pursuant to this Article, it shall pay out the money in the following order:
First: to the Trustee, its
agents and attorneys for amounts due under Section 6.07, including payment of all compensation, expense and liabilities incurred,
and all advances made, by the Trustee and the costs and expenses of collection;
Second: to Holders for amounts due and
unpaid on the Securities of any series for principal (and premium, if any) and interest, if any, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Securities of such series for principal (and premium, if any) and interest,
if any, respectively; and
Third: to the Company or, to the extent
the Trustee collects any amount pursuant to Section 2.02 hereof from a Guarantor, to such Guarantor, or to such party as a court
of competent jurisdiction shall direct.
The Trustee may fix a record date and payment date
for any payment to Holders pursuant to this Section 5.10 upon seven calendar days prior notice to the Company.
SECTION 5.11. Undertaking
for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking
to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees
and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by
the party litigant. This Section 5.11 does not apply to a suit by the Trustee, a suit by a Holder of Securities of the affected series
pursuant to Section 5.07 hereof, a suit by Holders of more than 10% in aggregate Principal Amount of the then outstanding Securities
of any series in the case of any suit relating to or arising under clause (a), (b), (c), (f) or (g) of Section 5.01, or
a suit by Holders of more than 10% in aggregate Principal Amount of the then outstanding Securities of all series in the case of any suit
relating to or arising under clause (d) or (e) of Section 5.01.
SECTION 5.12. Restoration
of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder,
then and in every such case, subject to any determination in such proceeding, the Company, any Guarantor, the Trustee and the Holders
shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding has been instituted.
SECTION 5.13. Rights
and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities in the last paragraph of Section 3.09, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law,
be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of
any other appropriate right or remedy.
SECTION 5.14. Delay or Omission Not Waiver. No delay
or omission of the Trustee or of any Holder of Securities of any series to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
ARTICLE 6
THE TRUSTEE
SECTION 6.01. Duties
and Responsibilities of the Trustee; During Default; Prior to Default. The Trustee, with respect to the Securities of any series,
prior to the occurrence of an Event of Default with respect to the Securities of such series and after the curing or waiving of all Events
of Default with respect to the Securities of such series which may have occurred, undertakes to perform such duties and only such duties
with respect to such series as are specifically set forth in this Indenture. In case an Event of Default with respect to the Securities
of a series has occurred (and is continuing which has not been cured or waived) the Trustee shall exercise such of the rights and powers
vested in it by this Indenture with respect to such series, and use the same degree of care and skill in their exercise, as a prudent
person would exercise or use under the circumstances in the conduct of such person’s own affairs.
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, provided that:
(a) the
duties and obligations of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee shall not
be liable 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;
(b) in
the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such statements, certificates or opinions which by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the accuracy of any calculation or facts stated therein);
(c) the
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be conclusively determined
by a court of competent jurisdiction or by such other means as may be agreed by the Company and the Trustee at the time of determination
that the Trustee was negligent in ascertaining the pertinent facts; and
(d) 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 a Company Order
or the direction of the Holders given as provided in Section 5.05 or otherwise exercising any trust or power conferred upon the Trustee,
under this Indenture.
None of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own funds or otherwise incur any potential or actual liability (financial or otherwise)
in the performance of any of its duties or in the exercise of any of its rights or powers, if there shall be reasonable ground for believing
that the repayment of such funds or adequate indemnity against such liability is not assured to it. This Section 6.01 is in furtherance
of and subject to Sections 315 and 316 of the Trust Indenture Act.
Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject
to the provisions of this Article 6.
SECTION 6.02. Certain
Rights of the Trustee. In furtherance of and subject to the Trust Indenture Act, and subject to Section 6.01:
(a) the
Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, Officers’ Certificate,
Opinion of Counsel or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture,
note, coupon, 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 an Officers’ Certificate
(unless other evidence in respect thereof be herein specifically prescribed) and the Trustee may request and be entitled to receive an
Officers’ Certificate before acting or refraining from acting with respect to such request, direction, order or demand; and any
resolution of the Board of Directors of the Company or a Guarantor, if any, may be evidenced to the Trustee by a copy thereof certified
by the Secretary or an Assistant Secretary of the Company or that Guarantor;
(c) the
Trustee may consult with counsel of its selection and any advice or Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in accordance with such advice or Opinion
of Counsel;
(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 Holders of the Securities of any series pursuant to the provisions of this Indenture, unless such Holders shall have offered
and provided to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred
therein or thereby;
(e) the
Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture;
(f) the
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon, security, or other paper or document
unless requested in writing so to do by the Holders of not less than a majority in aggregate Principal Amount of the Securities of any
series then outstanding; provided 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 assured to the Trustee by the security
afforded to it by the terms of this Indenture, the Trustee may require (and shall not be required to make such investigation unless it
receives) indemnity satisfactory to it against such expenses or liabilities as a condition to proceeding; the reasonable expenses of every
such examination shall be paid by the Company;
(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
not regularly in its employ and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or
attorney appointed with due care by it hereunder;
(h) the
rights, privileges, protections, immunities and benefits given to the Trustee under this Indenture, including, without limitation, its
right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act hereunder and the employees, officers and directors of the Trustee;
(i) the
Trustee shall not be deemed to have knowledge of any Default or Event of Default unless a Responsible Officer of the Trustee has received
from a Holder, the Company or any Guarantor written notice of any event which is in fact such a Default or Event of Default, as the case
may be, and such notice references the Securities, this Indenture, the circumstances giving rise to such a Default or Event of Default
and that the same has occurred and is continuing; and
(j) The
Trustee may request that the Company deliver an Officers’ Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person
authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously
delivered and not superseded.
SECTION 6.03. Trustee
Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof. The recitals contained herein and in the
Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no representation as to the validity or sufficiency of this
Indenture or of the Securities, except that the Trustee represents, that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility on
Form T-1 supplied to the Company, are true and accurate, subject to the qualifications set forth therein. The Trustee shall not be
liable or accountable in any manner for the use or application by the Company of any of the Securities or of the proceeds thereof.
SECTION 6.04. Trustee
and Agents May Hold Securities; Collections, Etc. The Trustee or any of its affiliates or any agent of the Company or the Trustee,
in its individual or any other capacity, may become the owner or pledgee of Securities, subject to Sections 6.10 and 6.13 with the
same rights it would have if it were not the Trustee or such agent and may otherwise deal with the Company, any Guarantor or their respective
affiliates and receive, collect, hold and retain collections from the Company with the same rights it would have if it were not the Trustee
or such agent. However, in the event that the Trustee acquires any “conflicting interest,” as defined in Section 310(b) of
the Trust Indenture Act, it must eliminate such conflict within 90 calendar days, apply to the Commission for permission to continue as
trustee or resign.
SECTION 6.05. Moneys Held by Trustee. 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 mandatory provisions of law. Neither the Trustee nor any agent of the Company or the
Trustee shall be under any liability for interest on any moneys received by it hereunder, except as otherwise agreed with the Company.
SECTION 6.06. Notice of Default. If any Default or any Event of Default occurs and is continuing
with respect to the Securities of any series and if such Default or Event of Default is actually known to a Responsible Officer of the
Trustee, the Trustee shall mail to each Holder of Securities of such series in the manner and to the extent provided in Trust Indenture
Act Section 313(c) notice of the Default or Event of Default (“Notice of Default”) within 90 calendar days
after it occurs, unless such Default or Event of Default has been cured; provided that, except in the case of a default in the
payment of the principal (whether at Stated Maturity, upon redemption (if applicable), upon any required repurchase by the Company (if
applicable) or otherwise) of, or interest or premium, if any, on any Security of such series, in the payment or delivery of any consideration
due upon conversion or exchange of any Security of such series (if applicable) or in the payment of any sinking fund installment with
respect to Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders of Securities of such series.
SECTION 6.07. Compensation
and Indemnification of Trustee and Its Prior Claim. The Company covenants and agrees to pay to the Trustee from time to time, and
the Trustee shall be entitled to, such compensation as shall be agreed in writing between the Company and the Trustee (which shall not
be limited by any provision of law in regard to the compensation of a trustee of an express trust) and the Company covenants and agrees
to pay or reimburse the Trustee and each predecessor Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by or on behalf of it in accordance with any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all agents and other persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith (as determined by a court of competent jurisdiction in a final,
non-appealable decision or by such other means as may be agreed by the Company and the Trustee at the time of determination). The Company
also covenants to indemnify the Trustee and each predecessor Trustee for, and to hold it harmless against, any and all loss, liability,
damage, claim or expense, including taxes (other than taxes based on the income of the Trustee) incurred without negligence or bad faith
on its part (as determined by a court of competent jurisdiction in a final, non-appealable decision or by such other means as may be
agreed by the Company and the Trustee at the time of determination), arising out of or in connection with the acceptance or administration
of this Indenture or the trusts hereunder and its duties hereunder, including without limitation the costs and expenses of defending
itself against or investigating any claim (whether asserted by the Company, a Holder or any other Person). The obligations of the Company
under this Section to compensate and indemnify the Trustee and each predecessor Trustee and to pay or reimburse the Trustee and
each predecessor Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive
the satisfaction and discharge of this Indenture. Such financial obligations of the Company identified in this Section 6.07 shall
be a senior claim to that of the Securities of each series, and as security for such obligations, the Trustee shall have a lien prior
to such Securities, upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit
of the Holders of particular Securities, and the Securities of each series are hereby subordinated to such senior claim. Such lien shall
survive the discharge and satisfaction of this Indenture.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 5.01(d) or Section 5.01(e), the expenses (including the reasonable charges and expenses
of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable federal
or state bankruptcy, insolvency or other similar law.
SECTION 6.08. Right
of Trustee to Rely on Officers’ Certificate, Etc. Subject to Sections 6.01 and 6.02, whenever in the administration
of the trusts of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to
taking or suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers’ Certificate delivered to the Trustee, and such certificate, in the absence of negligence or bad
faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 6.09. Persons Eligible for
Appointment as Trustee. The Trustee hereunder shall at all times be a corporation, national association or other appropriate
entity having a combined capital and surplus of at least $150,000,000, and which is eligible in accordance with the provisions of
Section 310(a) of the Trust Indenture Act. If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of a federal, state or District of Columbia supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published.
SECTION 6.10. Resignation
and Removal; Appointment of Successor Trustee.
(a) The
Trustee may at any time resign with respect to the Securities of one or more series by giving written notice of resignation to the Company
and to the Holders of Securities of such series, such notice to the Holders to be given by mailing (by first class mail) the same within
30 calendar days after such notice is given to the Company. Upon receiving such notice of resignation, the Company shall promptly
appoint a successor trustee by written instrument in duplicate, executed by authority of the Board of Directors of the Company, 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 calendar days after the mailing of such notice of resignation, the resigning
trustee may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor trustee, or
any Holder of the affected series who has been a bona fide holder of the Securities of the affected series for at least six months (or
since the Issue Date for such Securities if the holding period is less than six months) may, on behalf of itself 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 of the following shall occur:
(i) the
Trustee shall fail to comply with the provisions of Section 310(b) of the Trust Indenture Act, after written request therefor
by the Company or by any Holder who has been a bona fide holder of Securities of the affected series for at least six months; or
(ii) the
Trustee shall cease to be eligible in accordance with the provisions of Section 6.09, and shall fail to resign after written request
therefor by the Company or by any such Holder; or
(iii) the
Trustee shall become incapable of acting, or shall be adjudged as bankrupt or insolvent, or a receiver or liquidator of the Trustee or
of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee and appoint
a successor trustee by written instrument, in duplicate, executed by authority of the Board of Directors of the Company, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to Section 315(e) of
the Trust Indenture Act, any Holder of the affected series who has been a bona fide holder of the Securities of the affected series for
at least six months may, on behalf of itself and all others similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper
and prescribe, remove the Trustee and appoint a successor trustee.
(c) The
Holders of a majority in aggregate Principal Amount of the Securities of any series at the time outstanding may at any time remove the
Trustee for that series and appoint a successor trustee by delivering to the Trustee so removed, to the successor trustee so appointed
and to the Company and any Guarantor the evidence provided for in Section 7.01 of the action in that regard taken by the Holders
of that series.
If no successor trustee shall have been so appointed
and have accepted appointment 30 calendar days after the mailing of such notice of removal, the Trustee being removed may petition,
at the expense of the Company, any court of competent jurisdiction 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.
(d) Any
resignation or removal of the Trustee and any appointment of a successor trustee pursuant to any of the provisions of this Section 6.10
shall become effective upon acceptance of appointment by the successor trustee as provided in Section 6.11.
(e) The
Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series by mailing written notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series as their names and addresses appear in the Security Register. Each notice shall include
the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
SECTION 6.11. 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 its fees, costs, expenses and other charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver
to such successor Trustee all property and money held by such retiring Trustee hereunder.
(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,
any applicable Guarantor, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute
and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring
Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture
shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee, such retiring Trustee shall upon payment of its fees, costs, expenses and other
charges duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
(c) Upon
request of any such successor Trustee, the Company and any applicable Guarantor 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 the Trust Indenture Act.
SECTION 6.12. Merger,
Conversion, Consolidation or Succession to Business of Trustee. Any corporation or national association into which the Trustee may
be merged or converted or with which it may be consolidated, or to which the Trustee’s assets may be sold, or any corporation or
national association resulting from any merger, conversion, consolidation or sale to which the Trustee shall be a party or by which the
Trustee’s property may be bound, or any corporation or national association succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder, provided that such entity shall be eligible under
the provisions of Section 6.09, 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 at the time such successor to the Trustee shall succeed to the trusts
created by this Indenture any of the Securities shall have been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver such Securities so authenticated; and, in case at that
time any of the Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in
the name of any predecessor hereunder or in the name of the successor Trustee; and in all such cases such certificate shall have the full
force that it is anywhere in the Securities or in this Indenture ; provided that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Securities in the name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
SECTION 6.13. Preferential
Collection of Claims. If the Trustee shall be or shall become a creditor, directly or indirectly, secured or unsecured, of the Company
(or any other obligor on the Securities), the Trustee shall be subject to the provisions of Section 311 of the Trust Indenture Act
regarding the collection of claims against the Company (or any such other obligor). For purposes of Section 311(b) (4) and
(6) of such Act, the following terms shall mean:
(a) “cash transaction” means any transaction
in which full payment for goods or securities sold is made within seven calendar days after delivery of the goods or securities in currency
or in checks or other orders drawn upon banks or bankers and payable upon demand; and
(b) “self-liquidating
paper” means any draft, bill of exchange, acceptance or obligation which is made, drawn, negotiated or incurred by the Company for
the purpose of financing the purchase, processing, manufacturing, shipment, storage or sale of goods, wares or merchandise and which is
secured by documents evidencing title to, possession of, or a lien upon, the goods, wares or merchandise or the receivables or proceeds
arising from the sale of the goods, wares or merchandise previously constituting the security, provided the security is received by the
Trustee simultaneously with the creation of the creditor relationship with the Company arising from the making, drawing, negotiating or
incurring of the draft, bill of exchange, acceptance or obligation.
SECTION 6.14. Communications
with the Trustee. Any and all notices, certificates, opinions or filings with the Commission required or permitted to be provided
by the Company to the Trustee under this Indenture shall be in writing and shall be personally delivered, sent via an internationally
recognized overnight delivery service or sent by facsimile or electronic transmission to the address or telecopy number of the Corporate
Trust Office.
SECTION 6.15. Paying Agent/Registrar. If the Trustee is acting as Paying Agent
and/or Registrar hereunder, the rights and protections afforded to the Trustee under this Article 6 will also be afforded to the
Paying Agent and/or the Registrar.
ARTICLE 7
CONCERNING THE HOLDERS
SECTION 7.01. Evidence
of Action Taken by Holders. Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this
Indenture to be given or taken by Holders of Securities of any series may be embodied in and evidenced (a) by one or more instruments
of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing, (b) by the record of the Holders
of Securities of such series voting in favor thereof at any meeting of Holders duly called and held in accordance with the provisions
of Article 8, or (c) by a combination of such instrument or instruments and any such record of such a meeting of Holders; and,
except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to
the Trustee and, where it is hereby expressly required, to the Company and each Guarantor, if any. Proof of execution of any instrument
or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Sections 6.01 and
6.02) conclusive in favor of the Trustee, the Company and each Guarantor, if any, if made in the manner provided in this Article.
SECTION 7.02. Proof
of Execution of Instruments and of Holding of Securities; Record Date. Subject to Sections 6.01 and 6.02, the execution of any
instrument by a Holder or its agent or proxy may be proved in accordance with such reasonable rules and regulations as may be prescribed
by the Trustee or in such manner as shall be satisfactory to the Trustee. The holding of Securities shall be proved by the Security Register
or by a certificate of the Registrar thereof. The Company may set a record date for purposes of determining the identity of Holders of
Securities entitled to vote or consent to any action referred to in Section 7.01, which record date may be set at any time or from
time to time by notice to the Trustee, for any date or dates (in the case of any adjournment or resolicitation) not more than 90 calendar
days nor less than 20 calendar days prior to the proposed date of such vote or consent, and thereafter, notwithstanding any other
provisions hereof, only Holders of Securities of record on such record date shall be entitled to so vote or give such consent or to withdraw
such vote or consent.
SECTION 7.03. Who May Be Deemed Owners of Securities. The Company,
each Guarantor, if any, the Trustee, any Paying Agent and any Registrar may deem and treat the person in whose name any Security of any
series shall be registered in the Security Register on the applicable record date as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment
of or on account of the principal of (and premium, if any) and interest, if any, on such Security and for all other purposes; and none
of the Company, any Guarantor, the Trustee, any Paying Agent or any Registrar shall be affected by any notice to the contrary. All such
payments so made to, or upon the order of, any Holders shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy
and discharge the liability of moneys payable upon any such Security.
SECTION 7.04. Securities
Owned by Company Deemed Not Outstanding. In determining whether the Holders of the requisite aggregate Principal Amount of Securities
of any series have concurred in any direction, consent or waiver under this Indenture, Securities of such series which are owned by the
Company, any Guarantor with respect to such series or any other obligor on the Securities of such series or by any person directly or
indirectly controlling or controlled by or under direct or indirect common control with the Company, any such Guarantor or any other obligor
on the Securities of such 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
which a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so
to act with respect to such Securities and that the pledgee is not the Company, any Guarantor or any other obligor upon the Securities
or any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company, any Guarantor
or any other obligor on the Securities. In case of a dispute as to such right, the advice of counsel shall be full protection in respect
of any decision made by the Trustee in accordance with such advice. Upon request of the Trustee, the Company shall furnish to the Trustee
promptly an Officers’ Certificate listing and identifying all Securities of any series, if any, known by the Company to be owned
or held by or for the account of any of the above-described persons; and, subject to Sections 6.01 and 6.02, the Trustee shall be
entitled to accept such Officers’ Certificate as conclusive evidence of the facts therein set forth and of the fact that all Securities
of such series not listed therein are outstanding for the purpose of any such determination.
SECTION 7.05. Record
Date for Action by Holders. Whenever in this Indenture it is provided that Holders of a specified percentage in aggregate principal
amount of the Securities of any series may take any action (including the making of any demand or request, the giving of any direction,
notice, consent or waiver or the taking of any other action), other than any action taken at a meeting of Holders of such series called
pursuant to Article 8, the Company may, but shall not be obligated to, fix a record date, which need not be the date provided in
TIA Section 316(c) to the extent it would otherwise be applicable, for the purpose of determining the Holders entitled to give
their consent or take any other action described above or required or permitted to be taken pursuant to this Indenture. If a record date
is fixed, then notwithstanding Section 7.06, those Persons who were Holders at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to give such consent or to revoke any consent previously given or to take any such action, whether
or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 90 days after
such record date
SECTION 7.06. Right
of Revocation of Action Taken. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 7.01,
of the taking of any action by the Holders of the percentage in aggregate Principal Amount of the Securities of any series specified in
this Indenture in connection with such action, any Holder of a Security the serial number of which is shown by the evidence to be included
among the serial numbers of the Securities of the series the Holders of which have consented to such action may, by filing written notice
at the Corporate Trust Office and upon proof of holding as provided in this Article 7, 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 Securities issued in exchange or substitution therefor, irrespective of
whether or not any notation in regard thereto is made upon any such Security. Any action taken by the Holders of the percentage in aggregate
Principal Amount of the Securities of any series specified in this Indenture in connection with such action shall be conclusively binding
upon the Company, each Guarantor with respect to such series, if any, the Trustee and the Holders of all the Securities of such series.
ARTICLE 8
MEETINGS OF HOLDERS
SECTION 8.01. Purposes
for Which Meeting May Be Called. A meeting of Holders of Securities of any series may be called at any time and from time to
time pursuant to the provisions of this Article 8 for any of the following purposes:
(a) to give
any notice to the Company, any Guarantor or to the Trustee, or to give any directions to the Trustee, or to consent to the waiving of
any Default or Event of Default with respect to the Securities of such series hereunder and its consequences, or take any other action
authorized to be taken by Holders of such series pursuant to any of the provisions of Article 5;
(b) to
remove the Trustee and appoint a successor trustee with respect to the Securities of such series pursuant to the provisions of Article 6;
(c) to
consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 9.02; or
(d) to
take any other action authorized to be taken by or on behalf of the Holders of the percentage in aggregate Principal Amount of the Securities
of such series under any other provisions of this Indenture or under applicable law.
SECTION 8.02. Manner
of Calling Meetings; Record Date. The Trustee may at any time call a meeting of Holders of any series to take any action specified
in Section 8.01, to be held at such time and at such place in [·], or as the Trustee shall determine. Notice of every meeting
of Holders of any series setting forth the time and the place of such meeting and in general terms the action proposed to be taken at
such meeting, shall be mailed not less than 30 nor more than 60 calendar days prior to the date fixed for the meeting to such Holders
at their registered addresses. For the purpose of determining Holders entitled to notice of any meeting of Holders, the Trustee shall
fix in advance a date as the record date for such determination, such date to be a Business Day not more than 10 calendar days prior to
the date of the mailing of such notice as hereinabove provided. Only persons in whose name a Security of such series is registered upon
the books of the Company on a record date fixed by the Trustee as aforesaid, or by the Company or the Holders as in Section 8.03
provided, shall be entitled to notice of the meeting of Holders with respect to which such record date was so fixed.
SECTION 8.03. Call
of Meeting by Company or Holders. In case at any time the Company or a Guarantor, if any, pursuant to a resolution of its Board of
Directors, or the Holders of at least 10 percent in aggregate principal amount of the Securities of any series then outstanding, shall
have requested the Trustee to call a meeting of the Holders of such series to take any action authorized in Section 8.01 by written
request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed notice
of such meeting within 20 calendar days after receipt of such request, then the Company, any such Guarantor or the Holders of Securities
of such series in the amount above specified may fix the record date with respect to, and determine the time and the place for, such meeting
and may call such meeting to take any action authorized in Section 8.01, by mailing notice thereof as provided in Section 8.02.
The record date fixed as provided in the preceding sentence shall be set forth in a written notice to the Trustee and shall be a Business
Day not less than 15 nor more than 20 calendar days after the date on which such notice is sent to the Trustee.
SECTION 8.04. Who
May Attend and Vote at Meeting. To be entitled to vote at any meeting of Holders of any series, a person shall be a Holder of
one or more Securities of such series. The only persons who shall be entitled to be present or to speak at any meeting of Holders of any
series shall be the persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel, any
representatives of the Company and its counsel, and any representatives of any Guarantor of such Securities and its counsel. When a determination
of Holders entitled to vote at any meeting of Holders has been made as provided in this Section 8.04, such determination shall apply
to any adjournment thereof.
SECTION 8.05. Regulations. Notwithstanding any other provisions
of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of any series,
in regard to proof of the holding of the Securities of such series and of the appointment of proxies, and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and
such other matters concerning the conduct of the meeting as it shall think fit. Except as otherwise permitted or required by any such
regulations, the holding of the Securities of such series shall be provided in the manner specified in Section 8.06.
The Trustee shall,
by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or
by Holders as provided in Section 8.03, in which case the Company or the Holders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by a vote of
the Holders of a majority in Principal Amount of the Securities represented at the meeting and entitled to vote.
Subject to the provisions of Section 7.04,
at any meeting each Holder or proxy entitled to vote thereat shall be entitled to one vote for each $1,000 principal amount of Securities
of such series held or represented by him; provided that no vote shall be cast or counted at any meeting in respect of any Security
challenged as not outstanding and ruled by the chairman of the meeting to be not outstanding. The chairman of the meeting shall have no
right to vote other than by virtue of Securities held by him or instruments in writing as aforesaid duly designating him as the person
to vote on behalf of other Holders. Any meeting of Holders duly called pursuant to the provisions of Section 8.02 or 8.03 may be
adjourned from time to time, and the meeting may be held as so adjourned without further notice.
At any meeting of Holders of any series, the presence
of persons who held, or who are acting as proxy for persons who held, an aggregate Principal Amount of Securities of such series on the
record date for such meeting sufficient to take action on the business for the transaction of which such meeting was called shall constitute
a quorum, but, if less than a quorum is present, the persons holding or representing a majority in aggregate Principal Amount of the Securities
of such series represented at the meeting may adjourn such meeting with the same effect, for all intents and purposes, as though a quorum
had been present.
SECTION 8.06. Manner
of Voting at Meetings and Record to be Kept. The vote upon any resolution submitted to any meeting of Holders of any series shall
be by written ballots on each of which shall be subscribed the signature of the Holder or proxy casting such ballot and the identifying
number or numbers of the Securities of such series held or represented in respect of which such ballot is cast. The permanent chairman
of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Holders shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was mailed as provided
in Section 8.02. The record shall show the identifying numbers of the Securities of such series voting in favor of or against any
resolution. Each counterpart of such record shall be signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one of the counterparts shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee.
Any counterpart record so signed and verified shall be conclusive evidence of the matters therein stated and shall be the record referred
to in clause (b) of Section 7.01.
SECTION 8.07. Exercise
of Rights of Trustee and Holders Not to be Hindered or Delayed. Nothing in this Article 8 contained shall be deemed or construed
to authorize or permit, by reason of any call of a meeting of Holders or any rights expressly or impliedly conferred hereunder to make
such call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Holders of
any series under any of the provisions of this Indenture or of the Securities of such series.
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental
Indentures Without Consent of Holders. The Company, the Guarantors, if any, and the Trustee may amend or supplement this Indenture
or the Securities of any series or waive any provision hereof or thereof without the consent of any Holder:
(a) to
cure any ambiguity, defect or inconsistency in a manner that does not, individually or in the aggregate with all other changes, adversely
affect the rights of any Holder of the Securities of any series in any material respect;
(b) to
provide for uncertificated Securities in addition to or in place of certificated Securities;
(c) to
evidence the assumption of the obligations of the Company or a Guarantor to the Holders of the Securities in the case of any transaction
pursuant to Article 10 hereof;
(d) to
evidence and provide for the acceptance of appointment hereunder by a successor trustee and to add to or change any of the provisions
of the Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee;
(e) to
make any change that would provide any additional rights or benefits to the Holders of all or any series of Securities or that does not
adversely affect the legal rights hereunder of any such Holder;
(f) to
comply with requirements of the Commission in order to effect or maintain the qualification of this Indenture under the Trust Indenture
Act;
(g) to
establish the form or terms of Securities of any series as permitted by Sections 2.01 and 3.01;
(h) to
secure the Company’s obligations in respect of the Securities of any series;
(i) to
add an additional Guarantor in respect of the Securities of any series.
(j) in
the case of convertible or exchangeable Securities of any series, subject to the provisions of the supplemental indenture for such series
of Securities, to provide for conversion rights, exchange rights and/or repurchase rights of Holders of such series of Securities in connection
with any reclassification or change of the Company’s common stock or in the event of any amalgamation, consolidation, merger or
sale of all or substantially all of the assets of the Company or its Subsidiaries substantially as an entirety occurs;
(k) in
the case of convertible or exchangeable Securities of any series, to reduce the conversion price or exchange price applicable to such
series of Securities;
(l) in
the case of convertible or exchangeable Securities of any series, to increase the conversion rate or exchange ratio in the manner described
in the supplemental indenture for such series of Securities, provided that the increase will not adversely affect the interests
of the Holders of the Securities of such series in any material respect; or
(m) any
other action to amend or supplement the Indenture or the Securities of any series as set forth in the supplemental indenture establishing
the terms of the Securities of that series as provided in Section 3.01(b).
Upon the request of the Company accompanied by
a resolution of its Board of Directors authorizing the execution of any such supplemental indenture, and upon receipt by the Trustee of
the documents described in Section 9.04 hereof, the Trustee shall join with the Company and the Guarantors, if any, in the execution
of any supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and
stipulations which may be therein contained, but the Trustee shall not be obligated to enter into such supplemental indenture which affects
its own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.02. With
Consent of Holders. Except as provided in the next succeeding paragraphs, this Indenture or the Securities may be amended or supplemented
with the consent of the Holders of at least a majority in aggregate Principal Amount of all the Securities then outstanding affected by
such supplemental indenture (acting as a single class).
Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence satisfactory to the Trustee
of the consent of the Holders as aforesaid, and upon receipt by the Trustee of the documents described in Section 9.04 hereof, the
Trustee shall join with the Company and the Guarantors, if any, 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.
It shall not be necessary for the consent of the
Holders under this Section 9.02 to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if
such consent approves the substance thereof.
After an amendment, supplement or waiver under
this Section becomes effective, the Company shall mail to the Holders affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture or waiver. Subject to Sections 5.02(b), 5.04 and 5.07 hereof, the application
of or compliance with, either generally or in a particular instance, of any provision of this Indenture or the Securities may be waived
as to each series of Securities by the Holders of a majority in aggregate principal amount of the outstanding Securities of that series.
Without the consent of each Holder affected thereby,
however, an amendment or waiver may not:
(a) reduce
the percentage in Principal Amount of Securities of any series whose Holders must consent to an amendment, supplement or waiver;
(b) change
the Stated Maturity of the principal of, or any installment of principal of or interest on, or time for payment of interest on, any Security,
or reduce the Principal Amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or change any
Payment Office where, or the coin or currency in which, any Security or any premium or interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or
after the redemption date);
(c) modify
any of the provisions of this Section 9.02, Section 5.04 or Section 4.06, except to increase the percentage in Principal
Amount of Holders required under any such Section or to provide that certain other provisions of this Indenture cannot be modified
or waived without the consent of the Holder of each outstanding Security affected thereby, provided that this clause (c) will
not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant
changes in this Section 9.02, Section 5.02(b), Section 5.04 and Section 4.06, or the deletion of this proviso, in
accordance with the requirements of Section 6.11;
(d) impair
the rights of Holders of the Securities of any series that are exchangeable or convertible to receive payment or delivery of any consideration
due upon the conversion or exchange of the Securities of that series;
(e) change
in any manner adverse to the interests of the Holders of any outstanding Securities the terms and conditions of the obligations of the
Guarantors, if applicable, in respect of the due and punctual payment of the principal thereof (and premium, if any, thereon) and interest
thereon or any additional amounts or any sinking fund or analogous payments provided in respect thereof; or
(f) modify
or amend any of the provisions of the Indenture or Securities of any series as may be set forth in the supplemental indenture with respect
to the Securities of that series as requiring the consent of each Holder affected thereby.
SECTION 9.03. Effect
of Supplemental Indenture. Upon the execution of any supplemental indenture pursuant to the provisions hereof, this Indenture shall
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, each Guarantor, if any, and the Holders 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. Documents to Be Given to Trustee; Compliance with TIA. The Trustee, subject
to the provisions of Sections 6.01 and 6.02, shall be entitled to receive and conclusively rely upon an Officers’ Certificate
and an Opinion of Counsel as conclusive evidence that any such supplemental indenture is permitted or authorized under and otherwise complies
with the applicable provisions of this Indenture. Every such supplemental indenture shall comply with the TIA.
SECTION 9.05. Notation
on Securities in Respect of Supplemental Indentures. Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to the provisions of this Article may bear a notation approved by the Trustee as to form (but not as to substance)
as to any matter provided for by such supplemental indenture or as to any action taken at any such meeting. If the Company, any applicable
Guarantor or the Trustee shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and
the Board of Directors of the Company, to any modification of this Indenture contained in any such supplemental indenture may be prepared
by the Company, endorsed by any such Guarantor, authenticated by the Trustee and delivered in exchange for the Securities of such series
then outstanding.
ARTICLE 10
CONSOLIDATION, MERGER OR SALE OF ASSETS
SECTION 10.01. When
the Company May Merge, Etc. The Company shall not consolidate with or merge with or into, or sell, transfer, lease, convey or
otherwise dispose of all or substantially all of its assets to, another Person (including pursuant to a statutory arrangement), whether
in a single transaction or series of related transactions, unless:
(a) the Company is the surviving entity
or the Person formed by or surviving any such consolidation or merger or to which such sale, transfer, lease, conveyance or other disposition
is made shall be a Person organized and existing under the laws of the United States of America or any State or the District of Columbia,
and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, the due and punctual payment of
the principal of (and premium, if any) and interest, if any, on all the Securities and the performance or observance of every covenant
of this Indenture of the part of the Company to be performed or observed;
(b) immediately
after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time, or both, would become
an Event of Default, shall have happened and be continuing; and
(c) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel each stating that such consolidation, merger,
conveyance or transfer and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
SECTION 10.02. Successor
Person Substituted. Upon any consolidation or merger, or any sale, transfer, lease, conveyance or other disposition of all or substantially
all of the assets of the Company in accordance with Section 10.01 hereof, the successor Person formed by such consolidation or into
or with which the Company is merged or to which such sale, transfer, lease, conveyance or other disposition is made shall succeed to,
and, except in the case of a lease, be substituted for (so that from and after the date of such consolidation, merger, sale, transfer,
conveyance or other disposition, the provisions of this Indenture referring to the “Company” shall refer instead to the successor
Person), and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein.
In case of any such consolidation, merger, sale, transfer, lease, conveyance 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.
Notwithstanding the foregoing, (i) a consolidation or merger by the Company with or into, or (ii) the sale, transfer, lease,
conveyance or other disposition by the Company of all or substantially all of its assets to, one or more of its Subsidiaries shall not
relieve the Company from its obligations under this Indenture and the Securities.
SECTION 10.03. Opinion
of Counsel to Trustee. The Trustee, subject to the provisions of Sections 6.01 and 6.02, may receive an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, sale, transfer, lease, conveyance or other disposition complies with the applicable
provisions of this Indenture.
ARTICLE 11
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability
of Article. Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their
terms and (except as otherwise specified as contemplated by Section 3.01 for Securities of any series) in accordance with this Article.
SECTION 11.02. Notice
of Redemption; Partial Redemptions. Notice of redemption to the Holders of Securities of any series to be redeemed as a whole or
in part shall be given by mailing notice of such redemption by first class mail, postage prepaid, at least 30 calendar days and
not more than 60 calendar days prior to the date fixed for redemption to such Holders of Securities at their last addresses as they
shall appear upon the registry books. Any notice which is mailed in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice. Failure to give notice by mail, or any defect in the notice to the Holder
of any Security designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of
any other Security.
The notice of redemption to each such Holder shall identify the Securities to be redeemed (including CUSIP numbers)
and shall specify the Principal Amount of each Security held by such Holder to be redeemed, the date fixed for redemption, the redemption
price, the place or places of payment, that payment will be made upon presentation and surrender of such Securities, that interest accrued
to the date fixed for redemption will be paid as specified in said notice and that on and after said date interest thereon or on the
portions thereof to be redeemed will cease to accrue. In case any Security is to be redeemed in part only the notice of redemption shall
state the portion of the Principal Amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities in Principal Amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series
to be redeemed at the option of the Company shall be given by the Company or, at the Company’s request, by the Trustee in the name
and at the expense of the Company.
No later than 10:00 a.m. New York City
time on the redemption date specified in the notice of redemption given as provided in this Section, the Company will deposit with the
Trustee or with one or more Paying Agents (or, if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust)
an amount of money sufficient to redeem on the redemption date all the Securities of a series so called for redemption at the appropriate
redemption price, together with accrued interest to the date fixed for redemption. The Company will deliver to the Trustee at least 30 calendar
days prior to the date fixed for redemption an Officers’ Certificate stating the aggregate Principal Amount of Securities of such
series to be redeemed.
If less than all the Securities of a series are
to be redeemed, the Trustee shall select, either pro rata, by lot or by any other method it shall deem fair and reasonable, Securities
to be redeemed in whole or in part. Securities may be redeemed in part only in denominations equal to the minimum authorized denomination
for Securities of that series or any integral multiple thereof. The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial redemption, the Principal Amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the Principal Amount of such Security which
has been or is to be redeemed.
SECTION 11.03. Payment
of Securities Called for Redemption. If notice of redemption has been given as above provided, the Securities or portions of Securities
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 not including, the date fixed for redemption, and on and after said date (unless the Company
and any Guarantors shall default in the payment of such Securities at the redemption price, together with interest accrued to said date)
interest on the Securities or portions of Securities so called for redemption shall cease to accrue and, except as provided in Sections 6.05
and 12.06, such Securities shall cease from and after the date fixed for redemption to be entitled to any benefit or security under this
Indenture, and the Holders thereof shall have no right in respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation and surrender of such Securities at a Payment Office specified
in said notice, said Securities or the specified portions thereof shall be paid and redeemed by the Company at the applicable redemption
price, together with interest accrued thereon to, but not including, the date fixed for redemption; provided that any payment of
interest becoming due on the date fixed for redemption shall be payable to the Holders of such Securities registered as such on the relevant
Regular Record Date subject to the terms and provisions of Section 3.05 hereof.
If any Security called for redemption shall not be
so paid upon surrender thereof for redemption, the principal shall, until paid or duly provided for, bear interest from the date fixed
for redemption at the rate borne by the Security.
Upon presentation of any Securities redeemed in
part only, the Company shall execute, the Guarantors, if any, shall, execute the Guarantees endorsed thereon, and the Trustee shall authenticate
and make available for delivery to or on the order of the Holder thereof, at the expense of the Company, new Securities of authorized
denominations, in Principal Amount equal to the unredeemed portion of the Securities so presented.
ARTICLE 12
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 12.01. Applicability
of the Article; Company’s Option to Effect Defeasance or Covenant Defeasance. Unless pursuant to Section 3.01 provision
is made for the inapplicability of either or both of (a) defeasance of the Securities of a series under Section 12.02 or (b) covenant
defeasance of the Securities of a series under Section 12.03, then the provisions of such Section or Sections, as the case may
be, together with the other provisions of this Article, shall be applicable to the Securities of such series, and the Company may, at
its option, by resolution of its Board of Directors, at any time, elect to have either Section 12.02 or Section 12.03 applied
to the outstanding Securities of a series upon compliance with the conditions set forth below in this Article 12.
SECTION 12.02. Legal
Defeasance and Discharge. Upon the Company’s exercise of the option provided under Section 12.01 hereof to defease the
outstanding Securities of a particular series under this Section 12.02, the Company and any Guarantors shall be deemed to have been
discharged from its obligations with respect to such outstanding Securities and related Guarantees on the date the conditions set forth
below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, such Legal Defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities of such series, which shall thereafter
be deemed to be “outstanding” only for the purposes of Section 12.05 hereof and the other Sections of this Indenture
referred to in clauses (i) and (ii) of this Section 12.02, and to have satisfied all its other obligations under such Securities
and this Indenture (and the Trustee, on demand of and at the expense of the Company shall execute proper instruments acknowledging the
same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder: (i) the rights
of Holders of outstanding Securities of such series to receive solely from the trust fund described in Section 12.04 hereof, and
as more fully set forth in such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on such Securities
when such payments are due, (ii) the obligations of the Company or any Guarantor with respect to such Securities under Sections 3.06,
3.07, 3.08(a), 3.09, 3.11, and 12.05 hereof, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder, including,
without limitation, the Trustee’s rights under Section 6.07 hereof, and the obligations of the Company or any Guarantor in
connection therewith and with this Article 12. Subject to compliance with this Article 12, the Company may exercise its option
under this Section 12.02 notwithstanding the prior exercise of its option under Section 12.03 hereof with respect to the Securities
of such series.
SECTION 12.03. Covenant Defeasance. Upon the Company’s exercise of
the option provided under Section 12.01 hereof to obtain a covenant defeasance with respect to the outstanding Securities of a particular
series under this Section 12.03, the Company and any Guarantors shall be released from their obligations under the covenants contained
in Article 4 and Section 10.01 hereof and the covenants contained in any supplemental indenture applicable to such series, with
respect to the outstanding Securities of such series on and after the date the conditions set forth below are satisfied (hereinafter,
“Covenant Defeasance”), and the Securities of such series shall thereafter be deemed not outstanding for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but
shall continue to be deemed outstanding for all other purposes hereunder. For this purpose, such Covenant Defeasance means that, with
respect to the outstanding Securities of such series, the Company or any Guarantors may omit to comply with and shall have no liability
in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event of Default under Section 5.01(c) or Section 5.01(g) with
respect to outstanding Securities of such series, but, except as specified above, the remainder of this Indenture and of the Securities
of such series shall be unaffected thereby.
SECTION 12.04. Conditions
to Legal or Covenant Defeasance. The following shall be the conditions to the application of either Section 12.02 or Section 12.03
hereof to the outstanding Securities of a particular series:
(a) The Company shall irrevocably have deposited
or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 6.09 who shall agree to comply
with the provisions of this Article 12 applicable to it) as trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (i) an amount (in such
currency, currencies or currency unit in which such Securities and any related coupons are then specified as payable at Stated Maturity),
or (ii) non-callable Government Securities that through the scheduled payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than one day before the due date of any payment, cash in Dollars in an amount, or (iii) a
combination thereof, in such amounts as will be 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 and discharge and which shall be applied by the Trustee
(or other qualifying trustee) to pay and discharge the principal of (and premium, if any) and interest, if any, on such outstanding Securities
on the stated maturity date of such principal or installment of principal, or interest or premium, if any.
(b) In
the case of an election under Section 12.02 hereof, the Company shall have delivered to the Trustee an Opinion of Counsel confirming
that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since
the date hereof, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon
such Opinion of Counsel shall confirm that, the Holders of the outstanding Securities of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred.
(c) In
the case of an election under Section 12.03 hereof, the Company shall have delivered to the Trustee an Opinion of Counsel confirming
that the Holders of the outstanding Securities of such series will not recognize income, gain or loss for federal income tax purposes
as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had not occurred.
(d) No
Default or Event of Default (or event that, with the giving of notice or lapse of time or both would become an Event of Default) with
respect to the Securities of such series shall have occurred and be continuing on the date of such deposit or, insofar as Section 5.01(d) or
5.01(e) hereof is concerned, at any time in the period ending on the 124th calendar day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the expiration of such period).
(e) Such
Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any material agreement
or instrument (other than this Indenture) to which the Company or any Guarantor is a party or by which the Company or such Guarantor is
bound (other than a breach, violation or default resulting from the borrowing of funds to be applied to such deposit).
(f) The
Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit made by the Company pursuant to its
election under Section 12.02 or 12.03 hereof was not made by the Company with the intent of preferring the Holders of the affected
Securities over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding creditors of the Company,
or others.
(g) Such
Legal Defeasance or Covenant Defeasance shall be effected in compliance with any additional terms, conditions or limitations which may
be imposed on the Company in connection therewith pursuant to Section 3.01.
(h) The
Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the Legal Defeasance under Section 12.02 hereof or the Covenant Defeasance under Section 12.03
hereof (as the case may be) have been complied with as contemplated by this Section 12.04.
SECTION 12.05. Deposited
Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions. Subject to Section 12.06 hereof, all money
and non-callable Government Securities (including the proceeds thereof) deposited with the Trustee pursuant to Section 12.04 hereof
in respect of the outstanding Securities of a particular series shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities, the Guarantees, if any, relating to such series of Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders of such
Securities of all sums due and to become due thereon in respect of principal (and premium, if any) and interest, if any, but such money
need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the cash or non-callable Government Securities deposited pursuant to Section 12.04
hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge that by law is for the account
of the Holders of the outstanding Securities of such series.
Anything in this Article 12 to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon the Company’s request any money or non-callable
Government Securities held by it as provided in Section 12.04 hereof with respect to the Securities of any series which, in the opinion
of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee
(which may be the opinion delivered under Section 12.04(a) hereof), are in excess of the amount thereof which would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
SECTION 12.06. Repayment
to the Company or Guarantor. Any money deposited with the Trustee or any Paying Agent, or then held by the Company or applicable Guarantor,
in trust for the payment of the principal of (and premium, if any) and interest, if any, on any Security and remaining unclaimed for two
years after such principal, or interest or premium, if any, has become due and payable and was deposited with the Paying Agent shall be
paid to the Company or such Guarantor on its written request (or if then held by the Company or such Guarantor) will be discharged from
such trust) subject to any applicable abandoned property law; and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company or such Guarantor for payment thereof, and all liability of the Trustee or such Paying Agent with respect
to such trust money, and all liability of the Company or such Guarantor as trustee thereof, shall thereupon cease.
SECTION 12.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any Dollars or non-callable Government Securities in accordance with Section 12.02
or 12.03 hereof, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations of the Company and the applicable Guarantors under this Indenture, the
Securities and any Guarantees shall be revived and reinstated as though no deposit had occurred pursuant to Section 12.02 or 12.03
hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 12.02 or 12.03
hereof, as the case may be; provided that, if the Company or any Guarantor makes any payment of principal of, or interest or premium,
if any, on any Security following the reinstatement of its obligations, the Company or any Guarantor shall be subrogated to the rights
of the Holders of such Security to receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE 13
SATISFACTION AND DISCHARGE
SECTION 13.01. Satisfaction
and Discharge of Indenture. This Indenture shall upon a Company Request cease to be of further effect with respect to any series of
Securities (except, as to any surviving rights of registration of transfer, exchange or conversion of Securities of such series herein
expressly provided for or in the form of Security for such series and any rights to receive payment of interest thereon), and the Trustee,
on demand of and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture,
when:
(a) either
(i) all
Securities of such series theretofore authenticated and delivered (other than (A) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.09, and (B) Securities for whose payment money has theretofore
been (x) deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 4.03(c) or (y) paid to any State or the District of Columbia pursuant to its unclaimed
property or similar laws) have been delivered to the Trustee for cancellation; or
(ii) all
such Securities not theretofore delivered to the Trustee for cancellation
(A) have
become due and payable (whether at Stated Maturity, upon redemption (if applicable), upon any required repurchase by the Company (if applicable)
or otherwise), or
(B) will
become due and payable at their stated maturity within one year, or
(C) are
to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company, and the Company, in the case of (A), (B) or (C) above, has deposited
or caused to be deposited with the Trustee, as trust funds in trust for the purpose, money in the amount in the currency or currency units
in which the Securities of such series are payable, sufficient to pay and discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal (and premium, if any) and interest, if any, to the date of such deposit (in the
case of Securities which have become due and payable), or to the Stated Maturity or redemption date, as the case may be;
(b) the
Company or a Guarantor, if any, has paid or caused to be paid all other sums payable hereunder by the Company or the Guarantors, if any;
and
(c) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge
of this Indenture, the obligations of the Company to the Trustee under Section 6.07 and, if money shall have been deposited with
the Trustee pursuant to subclause (ii) of clause (a) of this Section, the obligations of the Trustee under Section 13.02
and Section 4.03(e) shall survive.
SECTION 13.02. Application
of Trust Money. Subject to the provisions of Section 4.03(e), all money deposited with the Trustee pursuant to Section 13.01
shall be held in trust and applied by it, in accordance with the provisions of the Securities, the Guarantees, if any, relating to such
series of Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as
its own Paying Agent), as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest,
if any, for whose payment such money has been deposited with the Trustee.
ARTICLE 14
HOLDERS’ LISTS AND REPORTS BY TRUSTEE, COMPANY
AND GUARANTORS
SECTION 14.01. Company
to Furnish Trustee Names and Addresses of Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually,
not later than 15 calendar days after the Regular Record Date for each series of Securities, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of Securities as of such Regular Record Date (unless the Trustee has
such information), or if there is no Regular Record Date for interest for such series of Securities, semi-annually, upon such dates as
are set forth in the Board Resolution of the Company or indenture supplemental hereto authorizing such series, and
(b) at
such other times as the Trustee may request in writing, within 30 calendar 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 calendar days prior to the time such list is furnished;
provided
that so long as the Trustee is the Registrar, no such list shall be required to be furnished.
SECTION 14.02. Preservation
of Information; Communications to Holders.
(a) The
Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 14.01 and the names and addresses of Holders received by the Trustee in its
capacity as the Registrar. The Trustee may destroy any list furnished to it as provided in Section 14.01 upon receipt of a new list
so furnished.
(b) If
three or more Holders (herein referred to as “applicants”) apply in writing to the Trustee, and furnish to the Trustee reasonable
proof that each such applicant has owned a Security for a period of at least six months preceding the date of such application (or since
the first date of the issuance for such Security, if the holding period is less than six months), and such application states that the
applicants desire to communicate with other Holders with respect to their rights under this Indenture or under the Securities and is accompanied
by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either
(i) afford
such applicants access to the information preserved at the time by the Trustee in accordance with Section 14.02(a); or
(ii) inform
such applicants as to the approximate number of Holders whose names and addresses appear in the information preserved at the time by the
Trustee in accordance with Section 14.02(a), and as to the approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written request of such applicants, mail to each Holder whose name and address
appears in the information preserved at the time by the Trustee in accordance with Section 14.02(a) a copy of the form of proxy
or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to
be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five Business Days after
such tender the Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed,
a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interest of the Holders
or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If the Commission, after opportunity
for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections
or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity
for hearing, that all objections so sustained have been met and shall enter an order so declaring, the Trustee shall mail copies of such
material to all such Holders with reasonable promptness after the entry of such order and the renewal of such tender; otherwise the Trustee
shall be relieved of any obligation or duty to such applicants respecting their application.
(c) Every
Holder of Securities, by receiving and holding the same, agrees with the Company, any applicable Guarantor and the Trustee that none of
the Company, such Guarantors and the Trustee nor any of their respective agents shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Holders in accordance with Section 14.02(b), regardless of the source
from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under Section 14.02(b).
SECTION 14.03. Reports
by the Trustee.
(a) The
Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of the Trust
Indenture Act, the Trustee shall, within 60 calendar days after each [●]15th following the date of this Indenture (commencing [●]15,
20[●]) deliver to Holders a brief report, dated as of such [●]15th, which complies with the provisions of such Section 313(a).
(b) A
copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each securities exchange upon
which Securities of any series are listed, with the Commission and with the Company. The Company will promptly notify the Trustee when
any Securities are listed on any securities exchange and of any delisting thereof.
SECTION 14.04. Reports
by the Company and Guarantors. The Company shall furnish to the Trustee, within 15 calendar days after it actually files such annual
and quarterly reports, information, documents and other reports with the Commission, copies of its annual report and of the information,
documents and other reports (or copies of such portions of any of the foregoing the Commission may by rules and regulations prescribe)
that the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act; provided that
any such annual and quarterly reports, information, documents and other reports and information filed with the Commission may be provided
by the Company to the Trustee electronically. The Company and any Guarantor shall comply with the other provisions of TIA Section 314(a).
Delivery of such information, documents and reports to the Trustee is for informational purposes only and the Trustee’s receipt
of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein,
including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively
on Officers’ Certificates). It is expressly understood that materials transmitted electronically by the Company to the Trustee or
filed pursuant to the Commission’s EDGAR system (or any successor electronic filing system) shall be deemed filed with the Trustee
and transmitted to Holders for purposes of this Section 14.04.
ARTICLE 15
MISCELLANEOUS PROVISIONS
SECTION 15.01. Incorporators,
Stockholders, Members, Partners, Officers, Managers and Directors of Company or any Guarantor Exempt from Individual Liability. No
recourse under or upon any obligation, covenant or agreement contained in this Indenture, or in any Security of any series or any Guarantees,
or because of any indebtedness evidenced thereby, shall be had against any incorporator, as such or against any past, present or future
stockholder, member, partner, officer, manager or director, as such, of the Company, any Guarantor or any successor, either directly or
through the Company, any Guarantor or any successor, under any rule of law, statute or constitutional provision or by the enforcement
of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the
acceptance of the Securities of such series by the Holders thereof and as part of the consideration for the issue of the Securities of
such series.
SECTION 15.02. Provisions of Indenture for the Sole Benefit of Parties and Holders.
Except as set forth in Section 15.10, nothing in this Indenture or in the Securities of any series, expressed or implied, shall give
or be construed to give to any person, firm or corporation, other than the parties hereto and their successors and the Holders of the
Securities of such series, any legal or equitable right, remedy or claim under this Indenture or under any covenant or provision herein
contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors and of the Holders
of the Securities.
SECTION 15.03. Successors and Assigns of Company or Guarantor Bound by Indenture.
All the covenants, stipulations, promises and agreements in this Indenture contained by or in behalf of the Company or any Guarantor shall
bind their successors and assigns, whether so expressed or not.
SECTION 15.04. Notices, Etc.,
to Trustee, the Company and Guarantors. Any request, demand, authorization, direction, notice, consent, waiver or act of Holders or
other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with:
(1) the
Trustee by any Holder, or by the Company or a Guarantor, if any, shall be sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Trustee at [●], facsimile [●], or such other facsimile number as may be provided by the
Trustee from time to time, and shall be deemed to have been made at the time of actual receipt of such written notice or facsimile transmission
thereof; provided that any delivery made or facsimile sent on a day other than a Business Day shall be deemed to be received on
the next following Business Day; or
(2) the
Company or a Guarantor, if any, by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing to the Company or such Guarantor, as the case may be, addressed to it at the address specified in Schedule
I hereto or at any other address or facsimile number previously furnished in writing to the Trustee by the Company or such Guarantor,
as the case may be, and shall be deemed to have been made at the time of delivery or facsimile transmission; provided that any
delivery made or facsimile sent on a day other than a Business Day shall be deemed to be received on the next following Business Day.
SECTION 15.05. Notices
to Holders. Where this Indenture provides for notice to Holders, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder entitled thereto, at its last address as it
appears in the Security Register. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where
this Indenture provides for notice in any manner, such notice may be waived in writing by the person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of such notice. The Trustee may waive notice to it of any provision
herein, and such waiver shall be deemed to be for its convenience and discretion. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case,
by reason of the suspension of or irregularities in regular mail service, it shall be impracticable to mail notice to the Company, any
Guarantor or any Holders when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice.
SECTION 15.06. Officers’
Certificates and Opinions of Counsel; Statements to Be Contained Therein. Upon any application or demand by the Company or any Guarantor
to the Trustee to take any action under any of the provisions of this Indenture, the Company or such Guarantor, as the case may be, shall
furnish to the Trustee an Officers’ Certificate stating that all conditions precedent provided for in this Indenture relating to
the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions
precedent have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate
or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to
compliance with a condition or covenant provided for in this Indenture shall include (a) a statement that the person making such
certificate or opinion has read such covenant or condition, (b) 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, (c) a statement that, in
the opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion
as to whether or not such covenant or condition has been complied with and (d) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer
of the Company or any Guarantor may be based, insofar as it relates to legal matters, upon a certificate or opinion of or representations
by counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which his or
her certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any certificate, statement or Opinion of Counsel may be based, insofar as it relates to factual matters or information
which is in the possession of the Company, upon the certificate, statement or opinion of or representations by an officer or officers
of the Company or such Guarantor, as the case may be, unless such counsel knows that the certificate, statement or opinion or representations
with respect to the matters upon which his or her certificate, statement or opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer
or counsel of the Company or any Guarantor may be based, insofar as it relates to accounting matters, upon a certificate or opinion of
or representations by an accountant or firm of accountants in the employ of the Company or such Guarantor, as the case may be, unless
such officer or counsel knows that the certificate or opinion or representations with respect to the accounting matters upon which his
or her certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate or opinion of any independent firm
of public accountants filed with the Trustee shall contain a statement that such firm is independent within the meaning of the Securities
Act and the rules and regulations promulgated thereunder.
SECTION 15.07. Payments
Due on Saturdays, Sundays and Holidays. If the Stated Maturity of interest on or principal of the Securities of a particular series
or the date fixed for redemption of any Security shall not be a Business Day, then payment of interest or principal with respect to such
Securities need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made
on the date of maturity or the date fixed for redemption, and no interest shall accrue for the period after such date.
SECTION 15.08. Conflict
of Any Provision of Indenture with Trust Indenture Act. If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with another provision included in this Indenture by operation of Sections 310 to 317, inclusive, of the Trust Indenture
Act (an “incorporated provision”), such incorporated provision shall control.
SECTION 15.09. Conflict
of Any Provision of Securities with Indenture. If and to the extent that any provision of the Securities limits, qualifies or conflicts
with a provision of this Indenture, such provision of this Indenture shall control.
SECTION 15.10. New
York Law to Govern. This Indenture, the Securities of any series and the Guarantees, if any, shall each be deemed to be a contract
under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of the State of New York,
but without giving effect to applicable principles of conflicts of law to the extent that the application of the law of another jurisdiction
would be required thereby.
SECTION 15.11. Waiver of Jury Trial. Each party hereto hereby
waives, and each Holder by acceptance of its Securities shall be deemed to have waived, to the fullest extent permitted by applicable
law, any right it may have to a trial by jury (but no other judicial remedies) in respect of any litigation directly or indirectly arising
out of, under or in connection with this Indenture or the transactions contemplated hereby.
SECTION 15.12. Consent
to Jurisdiction and Service. The Company and each Guarantor, if any, irrevocably (a) agree that any legal suit, action or proceeding
against the Company or any Guarantor arising out of or based upon this Indenture, the Notes or any Guarantee or the transactions contemplated
hereby may be instituted in any U.S. Federal or state court in the City and County of New York (collectively, the “Specified Courts”)
and (b) waive, to the fullest extent they may effectively do so, any objection which they may now or hereafter have to the laying
of venue of any such proceeding. The Company and each Guarantor hereby appoint [●], [●], as their authorized agent (the “Authorized
Agent”) upon whom process may be served in any such action arising out of or based on this Indenture, the Securities or the transactions
contemplated hereby which may be instituted in any Specified Court, expressly consent to the jurisdiction of any such Specified Court
in respect of any such action, and waive any other requirements of or objections to personal jurisdiction with respect thereto. Such appointment
shall be irrevocable by the Company and any Guarantors. The Company and each Guarantor represent and warrant that the Authorized Agent
has agreed to act as such agent for service of process and agree to take any and all action, including the filing of any and all documents
and instruments, that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the
Authorized Agent in any manner permitted by applicable law and written notice of such service to the Company or to a Guarantor shall be
deemed, in every respect, effective service of process upon the Company or such Guarantor.
SECTION 15.13. Third
Party Beneficiaries. Holders of Securities of the Company are third party beneficiaries of this Indenture, and any of them (or their
representative) shall have the right to enforce the provisions of this Indenture that benefit such Holders.
SECTION 15.14. Counterparts.
This Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together
constitute but one and the same instrument.
SECTION 15.15. Effect of Headings, Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction
hereof.
SECTION 15.16. No Adverse Interpretation of Other Agreements. This Indenture may
not be used to interpret another indenture, loan or debt agreement of the Company, any Guarantor or any Subsidiary. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 15.17. Severability.
If any provision hereof shall be held to be invalid, illegal or unenforceable under applicable law, then the remaining provisions hereof
shall be construed as though such invalid, illegal or unenforceable provision were not contained herein.
SECTION 15.18. Patriot
Act Compliance. The parties hereto acknowledge that in accordance with Section 326 of the USA Patriot Act the Trustee, like all
financial institutions, is required to obtain, verify, and record information that identifies each person or legal entity that establishes
a relationship or opens 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 USA Patriot Act.
SECTION 15.19. Force
Majeure. In no event shall the Trustee, Registrar or Paying Agent be liable for any failure or delay in the performance of its obligations
hereunder because of circumstances beyond the Trustee’s, Registrar’s or Paying Agents’ control, including, but not limited
to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot or embargo, which delay, restrict or prohibit the
providing of the services contemplated by this Indenture.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, all as of [●].
|
CYTOSORBENTS
CORPORATION |
|
as
the Company |
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By: |
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Name: |
|
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Title: |
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|
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[●] |
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as
a Guarantor |
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By: |
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Name: |
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|
Title: |
[Signature Page to Base Indenture]
[Signature Page to Base Indenture]
Schedule I
Company |
Address and Facsimile Number |
CytoSorbents Corporation |
305 College Road East
Princeton, NJ 08540
(732) 329-8885
Attn: Secretary
|
Guarantor |
Address and Facsimile Number |
[●] |
[●] |
Exhibit 5.1
![](https://www.sec.gov/Archives/edgar/data/1175151/000110465924083067/tm2420077d1_ex5-1img001.jpg)
July 26, 2024
CytoSorbents Corporation
305 College Road East
Princeton, NJ 08540
| Re: | Registration Statement on Form S-3 of
CytoSorbents Corporation |
Ladies and Gentlemen:
We have acted as counsel to CytoSorbents Corporation,
a Delaware corporation (the “Company”), in connection with the registration under the Securities Act of 1933, as amended
(the “Act”), by a Registration Statement on Form S-3 filed on the date hereof (as may be amended, the “Registration
Statement”), of an indeterminate amount of the Company’s securities having an aggregate public offering price not to
exceed $150,000,000 to be offered from time to time on a delayed or continuous basis pursuant to Rule 415 of the Act. Such securities
may include (i) shares of the Company’s common stock, $0.001 par value per share (the “Common Stock”),
(ii) shares of the Company’s preferred stock, $0.001 par value per share (the “Preferred Stock”), (iii) one
or more series (senior and subordinated) of the Company’s debt securities (collectively, “Debt Securities”),
(iv) warrants to purchase Common Stock, Preferred Stock or Debt Securities (the “Warrants”), (v) units consisting
of warrants, debt securities, shares of Preferred Stock, shares of Common Stock or any combination of such securities (the “Units”
and, together with the Common Stock, Preferred Stock, Debt Securities, and Warrants, the “Securities”), and (vi) any
combination of two or more of the above Securities. The Registration Statement will be supplemented by one or more prospectus supplements.
The Securities may be sold pursuant to an underwriting
agreement, placement agency agreement, subscription agreement or other contract, which will be in substantially the form to be filed
as an exhibit to a report filed pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
or an amendment to the Registration Statement. The Common Stock, Preferred Stock, Debt Securities, Warrants, and Units are to be issued
in forms to be filed as exhibits to a report filed pursuant to the Exchange Act or an amendment to the Registration Statement.
As to all matters of fact (including factual
conclusions and characterizations and descriptions of purpose, intention or other state of mind), we have relied, with your permission,
entirely upon written actions and minutes of the board of directors of the Company and certificates of certain officers of the Company
and have assumed, without independent inquiry, the accuracy of those certificates, written actions and minutes of the board of directors
of the Company.
As counsel to the Company, in rendering the opinions
hereinafter expressed, we have examined and relied upon originals or copies of such corporate records, agreements, documents and instruments
as we have deemed necessary or advisable for purposes of this opinion, including (i) the Second Amended and Restated Certificate
of Incorporation, as amended to date (as so amended, the “Certificate of Incorporation”) and the Second Amended and
Restated Bylaws of the Company, as amended to date (as so amended, the “Bylaws”), and (ii) the Registration Statement.
We have assumed:
| (i) | the genuineness of all signatures, the
conformity to the originals of all documents reviewed by us as copies, the authenticity and
completeness of all original documents reviewed by us in original or copy form and the legal
competence of each individual executing any document; |
|
Morgan,
Lewis & Bockius LLP |
|
|
|
|
|
502
Carnegie Center
|
|
|
Princeton,
NJ 08540-6241 |
+1.609.919.6600 |
|
United
States |
+1.609.919.6701 |
July 26, 2024
Page 2
| (ii) | that any shares of Common Stock issued
pursuant to the Registration Statement from time to time will not exceed the maximum authorized
number of shares of Common Stock under the current Certificate of Incorporation of the Company,
as the same may have been amended, minus that number of shares of Common Stock that may have
been issued and are outstanding, or are reserved for issuance for other purposes, at such
time; |
| (iii) | that any shares of Preferred Stock issued
pursuant to the Registration Statement from time to time will not exceed the maximum authorized
number of shares of Preferred Stock under the current Certificate of Incorporation of the
Company, as the same may have been amended, minus that number of shares of Preferred Stock
that may have been issued and are outstanding, or are reserved for issuance for other purposes,
at such time and that an appropriate certificate of designation relating to each such series
of Preferred Stock will have been duly authorized and established by proper action of the
board of directors of the Company or a duly constituted and acting committee thereof (such
board of directors or committee being hereinafter referred to as the “Board”
of the Company) and filed with the Secretary of State of the State of Delaware as required
under Delaware General Corporation Law (the “DGCL”), and in accordance
with the Certificate of Incorporation of the Company, as amended from time to time, the Bylaws
of the Company, as amended from time to time, and applicable Delaware law; |
| (iv) | that any Debt Securities issued pursuant
to the Registration Statement will be issued under and pursuant to a senior indenture and/or
a subordinated indenture, a form of which will be filed as an exhibit to the Registration
Statement (the “Indenture”) and is to be entered into, in each case, between
the Company and a trustee (the “Trustee”). Each Indenture may be supplemented,
as applicable, in connection with the issuance of each series of Debt Securities by a supplemental
indenture or other appropriate action of the Company creating such series; |
| (v) | that (1) the execution, delivery
and performance by the Company of the applicable Indenture will not, and the execution, delivery
and performance by the Company of any warrant agreement or other similar agreement entered
into in connection with the issuance of any Securities will not, violate the laws of the
jurisdiction of incorporation of the Company or any other applicable laws (excepting the
internal, substantive laws of the State of New York and, to the limited extent provided herein,
the DGCL); and (2) the execution, delivery and performance by the Company of the applicable
Indenture will not, and the execution, delivery and performance by the Company of any warrant
agreement or other similar agreement entered into in connection with the issuance of any
Securities will not, constitute a breach or violation of any agreement or instrument that
is binding upon the Company; and |
| (vi) | that, at the time of each issuance and
sale of the Securities, the Company will continue to be validly existing and in good standing
under the laws of its jurisdiction of organization with the requisite corporate power and
authority to issue and sell such Securities. |
This opinion is limited solely to the DGCL, as
applied by courts located in Delaware, and the internal, substantive laws of the State of New York as applied by courts located in New
York without regard to choice of law, in each case to the extent that the same may apply to or govern the transactions contemplated by
the Registration Statement, and we express no opinion with respect to the laws of any other state or jurisdiction. We express no opinion
as to the effect of events occurring, circumstances arising, or changes of law becoming effective or occurring, after the date hereof
on the matters addressed in this opinion.
Each opinion set forth below with respect to
enforceability is subject to the following general qualifications:
| (a) | enforceability may be limited by the effect
of applicable bankruptcy, insolvency, reorganization, moratorium, marshaling, fraudulent
conveyance or other similar laws and rules of law affecting the enforcement generally
of creditors’ or secured parties’ rights and remedies; |
July 26, 2024
Page 3
| (b) | rights to indemnification and contribution
may be limited by applicable law or equitable principles, and exculpatory provisions and
waivers of the benefits of statutory provisions may be limited on public policy grounds; |
| (c) | enforceability may be limited by general
principles of equity, including without limitation concepts of materiality, reasonableness,
good faith and fair dealing, and the possible unavailability of specific performance or injunctive
relief and limitation of rights of acceleration, regardless of whether such enforceability
is considered in a proceeding in equity or at law; and |
| (d) | we express no opinion with respect to
the enforceability of: |
| i. | consents to, or restrictions upon, judicial
relief or, except to the extent that such waivers or consents are made enforceable by New
York General Obligations Law (as applied by a New York State court), jurisdiction or venue; |
| ii. | advance waivers of claims, defenses, rights
granted by law, or notice, opportunity for hearing, evidentiary requirements, statutes of
limitation, trial by jury or at law, or other procedural rights; |
| iii. | waivers of broadly or vaguely stated rights;
and |
| iv. | provisions for liquidated damages, default
interest, late charges, monetary penalties, make-whole premiums or other economic remedies
to the extent such provisions are deemed to constitute a penalty or a forfeiture. |
Based on such examination and subject to the
foregoing, we are of the opinion that:
| 1. | With respect to shares of Common Stock,
when the shares of Common Stock have been duly registered and delivered, either (i) in
accordance with the applicable definitive placement agency, underwriting, subscription or
similar agreement approved by the board of directors of the Company (the “Board”),
upon payment of the consideration therefor (not less than the par value of the Common Stock),
(ii) upon the exercise of Warrants to purchase Common Stock and payment of the consideration
therefor (not less than the par value of the Common Stock) provided for therein, or (iii) upon
conversion or exercise of any other Security, in accordance with the terms of such Security
or the instrument governing such Security providing for such conversion or exercise as approved
by the Board, for the stated consideration (not less than the par value of the Common Stock),
then the shares of Common Stock will be validly issued, fully paid and nonassessable. |
| 2. | With respect to any particular series of
shares of Preferred Stock, when both (a) the Board has adopted a certificate of designation
relating to such Preferred Stock conforming to the DGCL (a “Certificate”)
and the Certificate has been filed with the Secretary of State of the State of Delaware,
and (b) the shares of Preferred Stock have been duly registered and delivered, either
(i) in accordance with the applicable definitive placement agency, underwriting, subscription
or similar agreement approved by the Board, upon payment of the consideration therefor (not
less than the par value of the Preferred Stock), (ii) upon the exercise of Warrants
to purchase Preferred Stock and payment of the consideration therefor (not less than the
par value of the Preferred Stock) provided for therein, or (iii) upon conversion or
exercise of any other Security, in accordance with the terms of such Security or the instrument
governing such Security providing for such conversion or exercise as approved by the Board
and for the stated consideration (not less than the par value of the Preferred Stock), then
the shares of Preferred Stock will be validly issued, fully paid and nonassessable. |
July 26, 2024
Page 4
| 3. | With respect to Debt Securities to be issued
under the applicable Indenture, when (a) the Trustee is qualified to act as Trustee
under the applicable Indenture, (b) the Trustee has duly authorized, validly executed
and delivered the Indenture, (c) the applicable Indenture has been duly authorized and
validly executed and delivered by the Company to the Trustee, (d) the applicable Indenture
has been duly qualified under the Trust Indenture Act of 1939, as amended, and (e) such
Debt Securities have been duly executed, authenticated, issued and delivered in accordance
with the provisions of the applicable Indenture, and the applicable definitive placement
agency, underwriting, subscription or similar agreement approved by the Board, or upon the
exercise of Warrants to purchase Debt Securities, upon payment of the consideration therefor
provided for therein, then such Debt Securities will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms and entitled
to the benefits of the applicable Indenture. |
| 4. | With respect to the Warrants, when the
Warrants have been duly executed and delivered against payment therefor, pursuant to the
applicable definitive placement agency, underwriting, subscription, warrant or similar agreement
duly authorized, executed and delivered by the Company and any applicable warrant agent and
the certificates for the Warrants have been duly executed and delivered by the Company and
any applicable warrant agent, then the Warrants will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms. |
| 5. | With respect to the Units, when the Units
have been duly executed and delivered against payment therefor, pursuant to the applicable
definitive placement agency, underwriting, subscription, unit or similar agreement duly authorized,
executed and delivered by the Company and any applicable unit agent and the certificates
for the Units have been duly executed and delivered by the Company and any applicable unit
agent, then the Units will constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms. |
We hereby consent to the filing of this opinion
as an exhibit to the Registration Statement and to the reference to this firm under the heading “Legal Matters” in the Prospectus
included in the Registration Statement. In giving this consent, we do not 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 Securities and Exchange Commission thereunder.
In rendering this opinion, we are opining only as to the specific legal issues expressly set forth herein, and no opinion shall be inferred
as to any other matter or matters. This opinion is intended solely for use in connection with the issuance and sale of the Securities
subject to the Registration Statement and is not to be relied upon for any other purpose.
Very truly yours,
/s/ Morgan, Lewis & Bockius LLP
Exhibit
23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference
in the Prospectus constituting a part of this Registration Statement of our report dated March 14, 2024 (which includes explanatory paragraph
regarding the Company’s ability to continue as a going concern), relating to the consolidated financial statements of Cytosorbents
Corporation as of December 31, 2023 and 2022 appearing in the entity’s Annual Report on Form 10-K for the year ended December 31,
2023. We also consent to the reference to us under the caption “Experts” in the Prospectus.
/s/ WithumSmith+Brown,
PC
East Brunswick,
New Jersey
July 26,
2024
Exhibit 107
Calculation of Filing Fee Table
FORM
S-3
(Form Type)
CYTOSORBENTS CORPORATION
(Exact Name of Registrant
as Specified in its Charter)
Table 1: Newly Registered
and Carry Forward Securities
|
Security Type |
Security
Class
Title |
Fee
Calculation
or Carry
Forward Rule |
Amount
Registered |
Proposed
Maximum
Offering Price
Per Unit |
Maximum
Aggregate
Offering Price |
Fee Rate |
Amount
of
Registration Fee |
Carry
Forward
Form
Type |
Carry
Forward
File
Number |
Carry
Forward
Initial
Effective
date |
Filing
Fee
Previously
Paid
In
Connection
with
Unsold
Securities
to
be
Carried
Forward |
Newly
Registered Securities |
Fees
to Be Paid |
Equity |
Common
Stock, par value $0.001 per share(1) |
|
(2) |
(3) |
(3) |
|
(2) |
|
|
|
|
|
Equity |
Preferred
Stock, par value $0.001 per share(1) |
|
(2) |
(3) |
(3) |
|
(2) |
|
|
|
|
|
Debt |
Debt
Securities(1) |
|
(2) |
(3) |
(3) |
|
(2) |
|
|
|
|
|
Other |
Warrants(1) |
|
(2) |
(3) |
(3) |
|
(2) |
|
|
|
|
|
Other |
Units(1) |
|
(2) |
(3) |
(3) |
|
(2) |
|
|
|
|
|
Unallocated
(Universal)
Shelf |
– |
Rule
457(o) |
(2) |
(3) |
$39,625,304.70 |
$0.00014760 |
$5,848.70 |
|
|
|
|
Fees
Previously Paid |
– |
– |
– |
– |
– |
– |
– |
– |
|
|
|
|
Carry
Forward Securities |
Carry
Forward Securities |
Equity |
Common
Stock, par value $0.001 per share(1) |
415(a)(6) |
(4) |
|
|
|
|
|
|
|
|
|
Equity |
Preferred
Stock, par value $0.001 per share(1) |
415(a)(6) |
(4) |
|
|
|
|
|
|
|
|
|
Debt |
Debt
Securities(1) |
415(a)(6) |
(4) |
|
|
|
|
|
|
|
|
|
Other |
Warrants(1) |
415(a)(6) |
(4) |
|
|
|
|
|
|
|
|
|
Other |
Units(1) |
415(a)(6) |
(4) |
|
|
|
|
|
|
|
|
|
Unallocated
(Universal)
Shelf |
Unallocated
(Universal)
Shelf |
415(a)(6) |
(4) |
|
$110,374,695.30 |
|
|
S-3 |
333-257910 |
July
27, 2021 |
$12,041.88 |
|
Total
Offering Amount |
|
$150,000,000 |
$ |
$5,848.70 |
|
|
|
|
|
Total
Fees Previously Paid |
|
|
|
– |
|
|
|
|
|
Total
Fee Offsets |
|
|
|
– |
|
|
|
|
|
Net
Fee Due |
|
|
|
$5,848.70 |
|
|
|
|
(1) | Separate
consideration may or may not be received for securities that are issuable upon the conversion
or exercise of, or in exchange for, other securities offered hereby. |
| |
(2) | CytoSorbents Corporation (the “Registrant”)
is registering hereunder such indeterminate number of shares of common stock and preferred stock,
such indeterminate principal amount of debt securities, and such indeterminate number of warrants
and units to purchase common stock, preferred stock and/or debt securities to be sold by the Registrant
from time to time at unspecified prices which shall have an aggregate initial offering price not to
exceed $150,000,000. If any debt securities are issued at an original issue discount, then the issue
price, and not the principal amount, of such debt securities shall be used for purposes of calculating
the aggregate initial offering price of all securities issued. The securities registered for sale
also include such indeterminate number of shares of common stock and preferred stock as may be issued
upon conversion of debt securities, such indeterminate number of shares of common stock that may be
issued upon conversion of preferred stock and such indeterminate number of shares of common stock
and preferred stock and principal amount of debt securities that may be issued upon exercise of warrants
and sale of units. In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended
(the “Securities Act”), the shares being registered hereunder include such indeterminate
number of shares of common stock and preferred stock as may be issuable with respect to the shares
being registered hereunder as a result of stock splits, stock dividends or similar transactions. |
| |
(3) | The proposed maximum offering price per share
will be determined, from time to time, by the Registrant in connection with the issuance by the Registrant
of the securities registered hereunder 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. |
| |
(4) | Pursuant to Rule 415(a)(6) under the Securities
Act, the securities registered pursuant to this Registration Statement include unsold securities previously
registered by the Registrant on the Registrant’s Registration Statement (File No. 333-257910),
filed on July 14, 2021, amended on July 20, 2021 and declared effective on July 27, 2021 (the “Prior
Registration Statement”). The Prior Registration Statement registered the offer and sale of
an indeterminate number of shares of common stock and preferred stock, an indeterminate principal
amount of debt securities and an indeterminate number of warrants to purchase common stock, preferred
stock and/or debt securities, having an aggregate initial offering price of $150,000,000, of which
an aggregate of $110,374,695.30 remains unsold as the date of filing of this Registration Statement (the
“Unsold Securities”), which the Registrant has determined to include in this registration
statement. The Registrant paid a filing fee of approximately $12,041.88 (calculated at the prior filing
fee rate) relating to the Unsold Securities under the Prior Registration Statement, and no additional
filing fee is due with respect to the Unsold Securities in connection with the filing of this registration
statement. The Registrant is also registering new securities on this registration statement with an
aggregate initial offering price of $39,625,304.70 (the “New Securities”), which aggregate
offering price is not specified as to each class of security. To the extent that, after the filing
date hereof and prior to the effectiveness of this Registration Statement, the Registrant sells any
Unsold Securities pursuant to the Prior Registration Statement, the Registrant will identify in a
pre-effective amendment to this Registration Statement the updated amount of Unsold Securities from
the Prior Registration Statement to be included in this Registration Statement pursuant to Rule 415(a)(6)
and the updated amount of New Securities to be registered on this Registration Statement. Pursuant
to Rule 415(a)(6) under the Securities Act, the offering of the Unsold Securities under the Prior
Registration Statement will be deemed terminated as of the date of effectiveness of this Registration
Statement. |
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