As filed with the Securities and Exchange Commission
on September 28, 2023
Registration No. 333-274665
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
iPower Inc.
(Exact name of registrant as specified in its
charter)
Nevada
(State or other jurisdiction of incorporation or
organization) |
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82-5144171
(I.R.S. Employer Identification Number) |
8798 9th Street
Rancho Cucamonga, CA 91730
(626) 863-7344
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Chenlong Tan
Chief Executive Officer
c/o iPower Inc.
8798 9th Street
Rancho Cucamonga, CA 91730
(626) 863-7344
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Megan Penick, Esq.
Stephen A. Weiss, Esq.
Michelman & Robinson, LLP
605 Third Avenue, 30th Floor
New York, New York 10158
Tel: (212) 730-7700
Approximate date of commencement of proposed
sale to the public: From time to time after this Registration Statement becomes effective.
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, as amended (“Securities
Act”), other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this form is filed to register additional securities
for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act Registration
Statement number of the earlier effective Registration Statement for the same offering. ☐
If this form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act Registration Statement number of
the earlier effective Registration Statement for the same offering. ☐
If this Form is a Registration Statement pursuant
to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to
a registration statement filed pursuant 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” and “smaller reporting company”
and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
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Accelerated filer |
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Non-accelerated filer |
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Smaller reporting company |
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Emerging growth company |
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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 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 or until this 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. We may not sell these securities until the registration statement filed with the Securities and Exchange
Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities
in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED SEPTEMBER
28, 2023
PROSPECTUS
$50,000,000
Common Stock
Preferred Stock
Warrants
Debt Securities
Rights
Units
This prospectus relates to the offer and sale,
from time to time, by iPower Inc. (“we,” “us,” or the “Company”), in one or more offerings, any combination
of common stock, par value $0.001 per share, preferred stock, par value $0.001 per share, warrants, debt securities, rights to purchase
common stock or other securities or units having a maximum aggregate offering price of $50,000,000. When we decide to sell a particular
class or series of securities, we will provide the specific terms of the offered securities in a prospectus supplement.
The prospectus supplements may also add, update
or change information contained in or incorporated by reference into this prospectus. However, no prospectus supplement shall offer a
security that is not registered and described in this prospectus at the time of its effectiveness. You should read this prospectus and
any prospectus supplement, as well as the documents incorporated by reference or deemed to be incorporated by reference into this prospectus,
carefully before you invest. This prospectus may not be used to offer or sell our securities unless accompanied by a prospectus supplement
relating to the offered securities.
These securities may be sold directly by us, through
dealers or agents designated from time to time, to or through underwriters or through a combination of these methods. See “Plan
of Distribution” in this prospectus. We may also describe the plan of distribution for any particular offering of our securities
in a prospectus supplement. If any agents, underwriters or dealers are involved in the sale of any securities in respect of which this
prospectus is being delivered, we will disclose their names and the nature of our arrangements with them in a prospectus supplement. The
net proceeds we expect to receive from any such sale will also be included in a prospectus supplement.
Our common stock is listed on The Nasdaq Capital
Market under the symbol “IPW.” Each prospectus supplement will contain information, where applicable, as to our listing on
The Nasdaq Capital Market or on any other securities exchange of the securities covered by the prospectus supplement.
Pursuant to General Instruction I.B.6 of Form
S-3, in no event will we sell our common stock in a public primary offering with a value exceeding more than one-third of our public
float in any 12-month period so long as our public float remains below $75.0 million. As of September 27, 2023, the aggregate
market value of our outstanding common stock held by non-affiliates, or public float, was approximately $8,849,448, based on 10,056,191shares
of our outstanding common stock that were held by non-affiliates on such date and a price of $0.88 per share, which was the price at
which our common stock was last sold on The Nasdaq Capital Market on September 15, 2023 (a date within 60 days of the date hereof), calculated
in accordance with General Instruction I.B.6 of Form S-3. During the 12 calendar months prior to and including the date of this prospectus,
we have not offered and sold any of our securities pursuant to General Instruction I.B.6 of Form S-3.
An investment in our securities involves a
high degree of risk. Please carefully read the information under the headings “Risk Factors” beginning on page 5 of this
prospectus, the applicable prospectus supplement and “Item 1A - Risk Factors” of our most recent Annual Report on Form 10-K
and in any Quarterly Report on Form 10-Q that is incorporated by reference in this prospectus before you invest in our securities.
We may amend or supplement this prospectus
from time to time by filing amendments or supplements as required. You should read the entire prospectus and any amendments or supplements
carefully before you make your investment decision.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
The date of this prospectus is ____________, 2023
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a Registration Statement
that we filed with the SEC using a “shelf” registration process. Under this shelf registration process, we may offer from
time to time securities having a maximum aggregate offering price of $50,000,000. Each time we offer any type or series of securities
under this prospectus, we will prepare and file with the Securities and Exchange Commission (“SEC”) a prospectus supplement
that contains more specific information about the terms of that offering. We may also authorize one or more free writing prospectuses
to be provided to you that may contain material information relating to these offerings. The prospectus supplement and any related free
writing prospectus that we may authorize to be provided to you may also add, update, or change information contained in this prospectus
or the documents incorporated herein by reference. You should read carefully both this prospectus, any prospectus supplement and any related
free writing prospectuses we have authorized for use in connection with a specific offering, together with additional information described
below under the caption “Where You Can Find More Information,” before buying any of the securities being offered.
This prospectus does not contain all the information
provided in the Registration Statement we filed with the SEC. For further information about us or our securities offered hereby, you should
refer to that Registration Statement, which you can obtain from the SEC as described below under “Where You Can Find More Information.”
We have not authorized anyone to provide any information
other than that contained or incorporated by reference in this prospectus or in any applicable prospectus supplement or any applicable
free writing prospectus that we have authorized. We take no responsibility for and can provide no assurance as to the reliability of,
any other information that others may give you. The securities offered hereby are not being offered in any jurisdiction where the offer
is not permitted. You should not assume that the information contained in or incorporated by reference in this prospectus is accurate
as of any date other than the respective dates of such document. Our business, financial condition, results of operations and prospects
may have changed since those dates.
We may sell securities through underwriters or
dealers, through agents, directly to purchasers or through any combination of these methods. We and our agents reserve the sole right
to accept or reject in whole or in part any proposed purchase of securities. The prospectus supplement, which we will prepare and file
with the SEC each time we offer securities, will set forth the names of any underwriters, agents or others involved in the sale of securities,
and any applicable fee, commission or discount arrangements with them. See “Plan of Distribution.”
Unless the context otherwise indicates, references
in this prospectus to, “iPower,” “the Company,” “we,” “our,” or “us” mean
iPower Inc., a Nevada corporation.
PROSPECTUS SUMMARY
This prospectus summary highlights certain
information about our company and other information contained elsewhere in this prospectus or in documents incorporated by reference.
This summary does not contain all of the information that you should consider before making an investment decision. You should carefully
read the entire prospectus, any prospectus supplement, including the matters set forth under the section of this prospectus entitled “Risk
Factors” and the financial statements and related notes and other information that we incorporate by reference herein, including
our Annual Report on Form 10-K and our Quarterly Reports on Form 10-Q, before making an investment decision.
Our Business
iPower Inc. (formerly BZRTH, Inc.) was formed
in Nevada in April 2018. Driven by tech and data, iPower Inc. is a U.S.-based online retailer and supplier of consumer home, garden and
pet products. Through the operations of our e-commerce platform, www.simpledeluxe.com and www.Zenhydro.com, as well as Amazon, Walmart
and eBay, our combined approximate 98,000 square foot fulfillment centers in Los Angeles, California, and our 99,000 square foot fulfillment
center in Rancho Cucamonga, California, we believe we are one of the leading online marketers, distributors and retailers in our product
categories, based on management’s estimates. Our core strategy continues to focus on expanding our geographic reach across the United
States and internationally through organic growth, both in terms of expanding customer base as well as brand and product development.
iPower has developed a set of methodologies driven by proprietary data formulas to effectively bring products to market and increase sales.
We are actively developing
and acquiring our in-house branded products, which to date include iPower, Simple Deluxe and other brands and consist
of products such as home goods, fans, pet products and hydroponics equipment, some of which have been designated as Amazon Choice products
and category best sellers, among others. While we continue to focus on our top product categories, we are working to expand our product
catalog to include new and adjacent categories through in-house products and our supply chain partners driven by market data analytics.
Products
iPower offers essential products in the home,
hydroponic, gardening and pet goods categories. While the company offers products from hundreds of third-party brands, the Company has
also established its own in-house branded products which are made available for purchase through our various sales channels. Our in-house
branded products, marketed under the iPower™ and Simple Deluxe™ brands, include fans, shelving,
furniture, hydroponic-related items, pet supplies and outdoor lifestyle products, some of which have been designated as Amazon best seller
product leaders, and for which numerous products have been designated “Amazon’s Choice” and “#1 Best Seller.”
We currently offer consumers a variety of products from our proprietary, in-house branded products. This year, we expanded our
in-house catalog to include more general home goods products, with home goods making up our largest meta category.
Our Target Markets are Large and Rapidly Growing
Our principal industry opportunity is in the retail
sale and distribution of consumer goods. Our primary subcategories include consumer home and pet goods ,consumer general gardening supplies
and consumer hydroponics equipment and supplies. Home goods is our largest sales category and currently includes commercial fans, floor
and wall fans, storage and shelving units, chairs, and outdoor furniture and recreation products, as well as a number of pet-related products.
General gardening supplies include environmental sensors and controls, carts, tools and nutrients, among others. Hydroponics supplies
generally include grow light systems; advanced heating, ventilation and air conditioning (“HVAC”) systems; water pumps, heaters,
chillers and filters; nutrient and fertilizer delivery systems; and various growing media typically made from soil, rock wool or coconut
fiber, among others. . .
The home goods industry has become a significant
category we sell into. Grandview Research estimated that the size of the home goods market in the US was $740 billion in 2020 and should
reach close to $1,040 billion by 2024, with a CAGR of 7.4%.
E-Commerce Strategy
The Company continues to grow and develop its
e-commerce platforms, including simpledeluxe.com and zenhydro.com, where we sell our in house and third party products. In addition to
our websites, we offer products to consumers through established e-commerce channels such as Amazon, Tiktok, eBay, and Walmart. Through
these portals we offer various consumer products for sale. Online shoppers can have the ability to peruse our various product categories
such as home fans and furnishing, shelving, outdoor lifestyle products, hydroponics equipment and pet products, providing consumers with
an easy and quick method to find the exact products they need. In addition to these sections, our webstores offer customers periodic flash
deals, best value recommendations and clearance sale items. Each product listed on the site contains product descriptions, product reviews
and a picture so the consumer can make an informed and educated purchase. Our product filters allow the consumer to search by brand, manufacturer,
or by price. Consumers can shop online day and night and have their purchases shipped directly to the location of their choice, or simply
elect to use our website as a resource. Google advertising, social media advertising and email list marketing, in addition to auto-ship
functionality, are the primary mechanisms we employ to drive traffic to Zenhydro.com and the other portals through which we make our products
available for sale, including Amazon.com, Tiktok, eBay and Walmart. At present, more than 90% of our total sales occur through Amazon.com.
Large Established Distribution Infrastructure
We have a fully developed distribution network
through our distribution centers in California. We work with a network of third-party common carrier trucking/freight companies that service
our customers throughout the U.S., Canada and across the globe. We receive daily customer orders via our business-to-business e-commerce
platform. Orders are then routed to the applicable distribution center and packed for shipments. Most of our customer orders are shipped
within one business day of order receipt.
Intellectual Property and Proprietary Rights
Our intellectual property primarily consists of
our brands and their related trademarks, domain names, websites, customer lists and affiliations, as well as our marketing intangibles,
product know-how and technology. We also hold rights to website addresses related to our business, including websites that are actively
used in our daily business operations, such as Zenhydro.com and simpledeluxe.com. We own federally registered trademarks for brands such
as “iPower” and “Simple Deluxe,” which correspond to our current in-house branded products.
The Securities We May Offer
This prospectus is part of a Registration Statement
that we filed with the SEC utilizing a shelf registration process. Under this shelf registration process, we may sell any combination
of:
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common stock; |
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preferred stock; |
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warrants; |
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debt securities, in one or more series; |
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right to purchase common stock or other securities; and/or |
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in one or more offerings up to a total dollar
amount of $50,000,000. This prospectus provides you with a general description of the securities we may offer. Each time we sell securities,
we will provide a prospectus supplement that will contain specific information about the terms of that specific offering and include a
discussion of any risk factors or other special considerations that apply to those securities. The prospectus supplement may also add,
update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement together
with the additional information described under the heading “Where You Can Find More Information.”
Use of Proceeds
Except as described in any applicable prospectus
supplement or in any free writing prospectuses we have authorized for use in connection with a specific offering, we currently intend
to use the net proceeds from the sale of the securities offered by us hereunder, if any, for working capital and general corporate purposes.
We will set forth in the applicable prospectus supplement or free writing prospectus our intended use for the net proceeds received from
the sale of any securities sold pursuant to the prospectus supplement or free writing prospectus.
Nasdaq Listing
Our common stock is listed on the Nasdaq Capital Market under the symbol
“IPW.”
Corporate Information
The Company, a Nevada corporation, was formed
on April 11, 2018 under the name BZRTH Inc. On September 4, 2020, we filed a Certificate of Amendment with the Secretary of State of the
State of Nevada changing our name to iPower Inc.
Our principal offices are located at 8798 9th
Street, Rancho Cucamonga, CA 91730, and our phone number is (626) 863-7344. Our business website is www.meetipower.com and our e-commerce
website is www.Zenhydro.com. The inclusion of our website address does not include or incorporate by reference into this prospectus supplement
or the accompanying prospectus any information on, or accessible through, our website.
RISK FACTORS
Investing in our securities involves risk. The
prospectus supplement applicable to a particular offering of securities will contain a discussion of the risks applicable to an investment
in iPower and to the particular types of securities that we are offering under that prospectus supplement. Before making an investment
decision, you should carefully consider the risks described under “Risk Factors” in the applicable prospectus supplement together
with all of the other information contained or incorporated by reference in the prospectus supplement or appearing or incorporated by
reference in this prospectus. You should also consider the risks, uncertainties and assumptions discussed under “Part I-Item 1A-Risk
Factors” of our most recent Annual Report on Form 10-K and in “Part II-Item 1A-Risk Factors” in our
most recent Quarterly Report on Form 10-Q filed subsequent to such Form 10-K that are incorporated herein by reference, as
may be amended, supplemented or superseded from time to time by other reports we file with the SEC in the future. Our business, financial
condition or results of operations could be materially adversely affected by any of these risks. The trading price of our securities could
decline due to any of these risks, and you may lose all or part of your investment.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, each prospectus supplement and
the documents incorporated by reference into this prospectus and each prospectus supplement contain “forward-looking statements”
within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), that relate to future events or our future financial performance and involve known and unknown
risks, uncertainties and other factors that may cause our actual results, levels of activity, performance or achievements to differ materially
from any future results, levels of activity, performance or achievements expressed or implied by these forward-looking statements. Such
forward-looking statements concern our anticipated results and progress of our operations in future periods, planned exploration and,
if warranted, development of our properties, plans related to our business and other matters that may occur in the future. These statements
relate to analyses and other information that are based on forecasts of future results, estimates of amounts not yet determinable and
assumptions of management. All statements contained herein that are not clearly historical in nature are forward-looking, and the words
“anticipate,” “believe,” “expect,” “estimate,” “may,” “will,”
“could,” “leading,” “intend,” “contemplate,” “shall” and similar expressions
are generally intended to identify forward-looking statements. Forward-looking statements are subject to a variety of known and unknown
risks, uncertainties and other factors which could cause actual events or results to differ from those expressed or implied by the forward-looking
statements. The section in this prospectus entitled “Risk Factors” and the sections in our periodic reports, including the
section in the Annual Report on Form 10-K for the fiscal year ended June 30, 2023 (the “2023 Form 10-K”) entitled “Business,”
and the section in the 2023 Form 10-K and any future Quarterly Report on Form 10-Qs incorporated herein by reference entitled “Management’s
Discussion and Analysis of Financial Condition and Results of Operations,” as well as other sections in this prospectus and the
documents or reports incorporated by reference into this prospectus, discuss some of the factors that could contribute to these differences.
Forward-looking statements in this prospectus, each prospectus supplement, and the documents incorporated by reference herein and therein
include, but are not limited to, statements with respect to:
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our inability to predict or anticipate the duration or long-term economic effect of the ongoing conflict between Ukraine and Russia and any potential supply chain issues that may result; |
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our limited operating history; |
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our future results of operations; |
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our current and future capital requirements necessary to support our efforts to open or acquire new complimentary businesses and channels of trade; |
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our cash needs and financial plans; |
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our competitive position; |
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seasonality and how it may impact consumer behavior and resulting sales; |
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our dependence on consumer interest in growing crops with the equipment and other products that we offer; |
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evolving laws surrounding cannabis on a local, state, and federal level; |
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the effectiveness of our internal controls; |
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our dependence on third parties to manufacture and sell us inventory; |
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our ability to maintain or protect our intellectual property; |
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our ability to innovate and develop new intellectual property to continue enhancing our product and service offerings; |
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our ability to protect our systems from unauthorized intrusions or theft of proprietary information; |
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our ability to retain key members of our executive team; |
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our ability to maintain our relationships with third-party vendors and suppliers; |
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our ability to internally develop products and intellectual property; |
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our ability to achieve expected technological advances by us or by third parties and our ability to leverage such advances; |
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our potential growth opportunities; |
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interpretations of current laws and the passage of future laws; |
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acceptance of our business model by investors; |
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the accuracy of our estimates regarding expenses and capital requirements; |
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our ability to sell additional products and services to customers; |
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our ability to adequately support growth; |
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our ability to ensure consistency in the quality of our products and the quality and costs of our supply chain, including management of freight costs; |
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any disruption to third party sales platforms, including Amazon.com, Walmart and eBay, through which we derive approximately 98% of our current revenues |
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potential disruption of our business and supply chain as a result of any political conflicts or trade wars between China and the U.S., as well as increased tariffs on the products which we import; and |
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the other risks set forth herein and in the documents incorporated by reference herein under the caption “Risk Factors.” |
The foregoing does not represent an exhaustive
list of matters that may be covered by the forward-looking statements contained herein or risk factors that we are faced with. The factors
set forth above under “Risk Factors” and other cautionary statements made in this prospectus should be read and understood
as being applicable to all related forward-looking statements wherever they appear in this prospectus. The forward-looking statements
contained in this prospectus represent our judgment as of the date of this prospectus. We caution readers not to place undue reliance
on such statements. You should read this prospectus and the documents that we have filed as exhibits to this prospectus and incorporated
by reference herein completely and with the understanding that our actual future results may be materially different from the plans, intentions
and expectations disclosed in the forward-looking statements we make. Except as required by law, we undertake no obligation to update
publicly any forward-looking statements for any reason, even if new information becomes available or other events occur in the future.
All subsequent written and oral forward-looking statements attributable to us or persons acting on our behalf are expressly qualified
in their entirety by the cautionary statements contained above and throughout this prospectus.
This prospectus and the documents incorporated
by reference in this prospectus may contain market data that we obtain from industry sources. These sources do not guarantee the accuracy
or completeness of the information. Although we believe that our industry sources are reliable, we do not independently verify the information.
The market data may include projections that are based on a number of other projections. While we believe these assumptions to be reasonable
and sound as of the date of this prospectus, actual results may differ from the projections.
DIVIDEND POLICY
We have never declared or paid dividends on our
common stock and we do not anticipate paying any cash dividends on our common stock in the foreseeable future. Payment of cash dividends,
if any, in the future will be at the discretion of our board of directors and will depend on applicable law and then-existing conditions,
including our financial condition, operating results, business prospects, capital requirements, contractual restrictions, and other factors
our board of directors may deem relevant. We currently intend to retain all available funds and any future earnings to fund the development
and growth of our business.
USE OF PROCEEDS
Except as otherwise provided in the applicable
prospectus supplement, we intend to use the net proceeds from the sale of the securities covered by this prospectus for general corporate
purposes, which may include, but is not limited to, working capital, capital expenditures, research and development expenditures and acquisitions
of new technologies or businesses. The precise amount, use and timing of the application of such proceeds will depend upon our funding
requirements and the availability and cost of other capital. Additional information on the use of net proceeds from an offering of securities
covered by this prospectus may be set forth in the prospectus supplement relating to the specific offering.
DESCRIPTION OF CAPITAL STOCK
The following sections constitute a summary
as of the date of this prospectus and do not purport to be a complete description of our capital stock. We will describe in the applicable
prospectus supplement relating to a particular offering the specific terms of the securities offered by that prospectus supplement. We
will indicate in the applicable prospectus supplement if the terms of the securities differ from the terms we have summarized below. We
will also include in the prospectus supplement information, where applicable, material United States federal income tax considerations
relating to the securities.
General
The following description of common stock of the
Company (the “common stock”) and preferred stock of the Company (the “preferred stock”), together with the additional
information we include in any applicable prospectus supplement, summarizes the material terms and provisions of the common stock and preferred
stock that we may offer under this prospectus but is not complete. For the complete terms of our common stock and preferred stock, please
refer to our articles of incorporation, as may be amended from time to time (the “Articles of Incorporation”), any certificates
of designation for our preferred stock, that may be authorized from time to time, and our amended and restated bylaws, as amended from
time to time (the “Bylaws”). The Nevada General Corporation Law may also affect the terms of these securities. While the terms
we have summarized below will apply generally to any future common stock or preferred stock that we may offer, we will describe the specific
terms of any series of these securities in more detail in the applicable prospectus supplement. If we so indicate in a prospectus supplement,
the terms of any common stock or preferred stock we offer under that prospectus supplement may differ from the terms we describe below.
As of September 27, 2023, our authorized
capital stock consists of 180,000,000 shares of common stock, par value $0.001 per share, of which 29,764,374 shares of common stock were
issued and outstanding; and 20,000,000 shares of preferred stock, par value $0.001 per share, none of which were issued and outstanding.
The authorized and unissued shares of common stock and preferred stock are available for issuance without further action by our stockholders
unless such action is required by applicable law or the rules of any stock exchange on which our securities may be listed. Unless approval
of our stockholders is so required, our board of directors will not seek stockholder approval for the issuance and sale of our common
stock.
Common Stock
Dividends. Subject to the express terms
of any outstanding preferred stock, dividends may be paid in cash or otherwise with respect to the holders of our common stock out of
the assets of the Company legally available therefor, upon the terms, and subject to such limitations, as the board of directors may determine.
Voting Rights. Holders of common stock
are entitled to one (1) vote per share in voting or consenting to the election of directors and for all other corporate purposes for which
they are entitled to vote.
Liquidation Rights. Subject to the express
terms of any outstanding preferred stock, in the event of a Liquidation of the Corporation, the holders of common stock shall be entitled
to share in the distribution of any remaining assets available for distribution to the holders of common stock ratably in proportion to
the total number of shares of common stock then issued and outstanding.
Preferred Stock
Subject to approval by holders of shares of any
class or series of preferred stock to the extent such approval is required by its terms, the board of directors is expressly authorized,
subject to limitations prescribed by law, by resolution or resolutions and by filing a certificate pursuant to the applicable law of the
State of Nevada, to provide, out of the unissued shares of preferred stock, for series of preferred stock, and to establish from time
to time the number of shares to be included in each such series, and to fix the designation, powers, preferences and rights of the shares
of each such series and the qualifications, limitations or restrictions thereof.
Our common stock is listed on The Nasdaq Capital
Market under the symbol “IPW.” The Transfer Agent and Registrar for shares of our common stock and preferred stock is VStock
Transfer, LLC, Woodmere, New York. Our Transfer Agent and Registrar’s telephone number is (212) 828-8436.
Options/Warrants/ Restricted Stock Units
As of September 27, 2023, subject to vesting
conditions, we had outstanding options to purchase 3,330,000 shares of our common stock at a weighted average exercise price of $1.12.
We also had outstanding warrants to purchase 685,715 shares of our common stock at an average exercise price of $5.00 per share and a
total of 53,435 vested but unissued restricted stock units.
DESCRIPTION OF WARRANTS
The following description,
together with the additional information we may include in any applicable prospectus supplements, summarizes the material terms and provisions
of the warrants that we may offer under this prospectus and the related warrant agreements and warrant certificates. For the avoidance
of doubt, this section relates only to new warrants that we may issue and not any of our outstanding warrants, and we refer to such new
warrants in this prospectus for the sake of simplicity as “warrants.”
While the terms summarized
below will apply generally to any warrants that we may offer, we will describe the particular terms of any series of warrants in more
detail in the applicable prospectus supplement. If we indicate in the prospectus supplement, the terms of any warrants offered under that
prospectus supplement may differ from the terms described below. Specific warrant agreements will contain additional important terms and
provisions and will be incorporated by reference as an exhibit to the registration statement, which includes this prospectus.
General
We may issue warrants for the
purchase of common stock, preferred stock or debt securities, in one or more series. We may issue warrants independently or together with
common stock, preferred stock and/or debt securities, and the warrants may be attached to or separate from these securities.
We plan to evidence each series
of warrants by warrant certificates that we will issue under a separate warrant agreement. We will enter into the warrant agreement with
a warrant agent and we will indicate the name and address of the warrant agent in the applicable prospectus supplement relating to a particular
series of warrants.
We will describe in the applicable
prospectus supplement the terms of the series of warrants, including:
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the offering price and aggregate number of warrants offered; |
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the currency for which the warrants may be purchased; |
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if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such security or each principal amount of such security; |
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if applicable, the date on and after which the warrants and the related securities will be separately transferable; |
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the number of shares of common stock purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such exercise; |
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the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreement and the warrants; |
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the terms of any rights to redeem or call the warrants; |
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any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants; |
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the periods during which, and places at which, the warrants are exercisable; |
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the manner of exercise; |
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the dates on which the right to exercise the warrants will commence and expire; |
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the manner in which the warrant agreement and warrants may be modified; |
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if applicable, a discussion of certain material U.S. federal income tax considerations of holding or exercising the warrants; and |
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any other specific terms, preferences, rights or limitations of or restrictions on the warrants. |
DESCRIPTION OF DEBT SECURITIES
The following description, together with the
additional information we include in any applicable prospectus supplements, summarizes the material terms and provisions of the debt securities
that we may offer under this prospectus. While the terms we have summarized below will generally apply to any future debt securities we
may offer under this prospectus, we will describe the particular terms of any debt securities that we may offer in more detail in the
applicable prospectus supplement. The terms of any debt securities we offer under a prospectus supplement may differ from the terms we
describe below. As of the date of this prospectus, we have no outstanding registered debt securities.
We will issue senior notes under a senior indenture,
which we will enter into with the trustee to be named in the senior indenture. We will issue subordinated notes under a subordinated indenture,
which we will enter into with the trustee to be named in the subordinated indenture. We have filed forms of these documents as exhibits
to the registration statement of which this prospectus is a part. We use the term “indentures” to refer to both the senior
indenture and the subordinated indenture.
The indentures will be qualified under the Trust
Indenture Act of 1939, as amended (the “Trust Indenture Act”). We use the term “debenture trustee” to refer to
either the senior trustee or the subordinated trustee, as applicable.
The following summaries of material provisions
of the senior notes, the subordinated notes and the indentures are subject to, and qualified in their entirety by reference to, all the
provisions of the indenture applicable to a particular series of debt securities. We urge you to read the applicable prospectus supplements
related to the debt securities that we sell under this prospectus, as well as the complete indentures that contain the terms of the debt
securities. Except as we may otherwise indicate, the terms of the senior and the subordinated indentures are identical.
General
The terms of each series of debt securities will
be established by or pursuant to a resolution of our board of directors and set forth or determined in the manner provided in an officers’
certificate or by a supplemental indenture. Debt securities may be issued in separate series without limitation as to aggregate principal
amount. We may specify a maximum aggregate principal amount for the debt securities of any series. The particular terms of each series
of debt securities will be described in a prospectus supplement relating to such series, including any pricing supplement. The prospectus
supplement will set forth:
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the title; |
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the principal amount being offered, and, if a series, the total amount authorized and the total amount outstanding; |
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any limit on the amount that may be issued; |
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whether or not we will issue the series of debt securities in global form and, if so, the terms and who the depositary will be; |
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the maturity date; |
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whether and under what circumstances, if any, we will pay additional amounts on any debt securities held by a person who is not a U.S. person for tax purposes, and whether we can redeem the debt securities if we have to pay such additional amounts; |
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the annual interest rate, which may be fixed or variable, or the method for determining the rate, the date interest will begin to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining such dates; |
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whether or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
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the terms of the subordination of any series of subordinated debt; |
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the place where payments will be payable; |
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restrictions on transfer, sale or other assignment, if any; |
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our right, if any, to defer payment of interest and the maximum length of any such deferral period; |
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the date, if any, after which, the conditions upon which, and the price at which we may, at our option, redeem the series of debt securities pursuant to any optional or provisional redemption provisions, and any other applicable terms of those redemption provisions; |
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the date, if any, on which, and the price at which we are obligated, pursuant to any mandatory sinking fund or analogous fund provisions or otherwise, to redeem, or at the holder’s option to purchase, the series of debt securities and the currency or currency unit in which the debt securities are payable; |
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whether the indenture will restrict our ability and/or the ability of our subsidiaries to, among other things: |
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incur additional indebtedness; |
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issue additional securities; |
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create liens; |
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pay dividends and make distributions in respect of our capital stock and the capital stock of our subsidiaries; |
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redeem capital stock; |
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place restrictions on our subsidiaries’ ability to pay dividends, make distributions or transfer assets; |
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make investments or other restricted payments; |
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sell or otherwise dispose of assets; |
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enter into sale-leaseback transactions; |
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engage in transactions with stockholders and affiliates; |
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issue or sell stock of our subsidiaries; or |
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effect a consolidation or merger; |
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whether the indenture will require us to maintain any interest coverage, fixed charge, cash flow-based, asset-based or other financial ratios; |
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a discussion of any material or special U.S. federal income tax considerations applicable to the debt securities; |
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information describing any book-entry features; |
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provisions for a sinking fund purchase or other analogous fund, if any; |
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whether the debt securities are to be offered at a price such that they will be deemed to be offered at an “original issue discount” as defined in paragraph (a) of Section 1273 of the Internal Revenue Code; |
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the procedures for any auction and remarketing, if any; |
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the denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple thereof; |
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if other than dollars, the currency in which the series of debt securities will be denominated; and |
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any other specific terms, preferences, rights
or limitations of, or restrictions on, the debt securities, including any events of default that are in addition to those described in
this prospectus or any covenants provided with respect to the debt securities that are in addition to those described above, and any
terms that may be required by us or advisable under applicable laws or regulations or advisable in connection with the marketing of the
debt securities. |
Conversion or Exchange Rights
We will set forth in the prospectus supplement
the terms on which a series of debt securities may be convertible into or exchangeable for common stock or other securities of ours or
a third party, including the conversion or exchange rate, as applicable, or how it will be calculated, and the applicable conversion or
exchange period. We will include provisions as to whether conversion or exchange is mandatory, at the option of the holder or at our option.
We may include provisions pursuant to which the number of our securities or the securities of a third party that the holders of the series
of debt securities receive upon conversion or exchange would, under the circumstances described in those provisions, be subject to adjustment,
or pursuant to which those holders would, under those circumstances, receive other property upon conversion or exchange, for example in
the event of our merger or consolidation with another entity.
Consolidation, Merger or Sale
The indentures do not contain any covenant that
restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all or substantially all of our assets.
However, any successor of ours or the acquirer of such assets must assume all of our obligations under the indentures and the debt securities.
If the debt securities are convertible for our
other securities, the person with whom we consolidate or merge or to whom we sell all of our property must make provisions for the conversion
of the debt securities into securities that the holders of the debt securities would have received if they had converted the debt securities
before the consolidation, merger or sale.
Events of Default Under the Indenture
The following are events of default under the
indentures in the forms initially filed as exhibits to the registration statement with respect to any series of debt securities
that we may issue:
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if we fail to pay interest when due and payable and our failure continues for 90 days and the time for payment has not been extended or deferred; |
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if we fail to pay the principal, sinking fund payment or premium, if any, when due and payable and the time for payment has not been extended or delayed; |
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if we fail to observe or perform any other covenant contained in the debt securities or the indentures, other than a covenant specifically relating to another series of debt securities, and our failure continues for 90 days after we receive notice from the debenture trustee or holders of at least 25% in aggregate principal amount of the outstanding debt securities of the applicable series; and |
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if specified events of bankruptcy, insolvency
or reorganization occur. |
If an event of default with respect to debt securities
of any series occurs and is continuing, other than an event of default specified in the last bullet point above, the debenture trustee
or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series, by notice to us in writing,
and to the debenture trustee if notice is given by such holders, may declare the unpaid principal of, premium, if any, and accrued interest,
if any, due and payable immediately. If an event of default specified in the last bullet point above occurs with respect to us, the principal
amount of and accrued interest, if any, of each issue of debt securities then outstanding shall be due and payable without any notice
or other action on the part of the debenture trustee or any holder.
The holders of a majority in principal amount
of the outstanding debt securities of an affected series may waive any default or event of default with respect to the series and its
consequences, except defaults or events of default regarding payment of principal, premium, if any, or interest, unless we have cured
the default or event of default in accordance with the indenture. Any waiver shall cure the default or event of default.
Subject to the terms of the indentures, if an
event of default under an indenture shall occur and be continuing, the debenture trustee will be under no obligation to exercise any of
its rights or powers under such indenture at the request or direction of any of the holders of the applicable series of debt securities,
unless such holders have offered the debenture trustee reasonable indemnity. The holders of a majority in principal amount of the outstanding
debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available
to the debenture trustee, or exercising any trust or power conferred on the debenture trustee, with respect to the debt securities of
that series, provided that:
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the direction so given by the holder is not in conflict with any law or the applicable indenture; and |
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subject to its duties under the Trust Indenture Act, the debenture trustee need not take any action that might involve it in personal liability or might be unduly prejudicial to the holders not involved in the proceeding. |
A holder of the debt securities of any series
will only have the right to institute a proceeding under the indentures or to appoint a receiver or trustee, or to seek other remedies
if:
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the holder has given written notice to the debenture trustee of a continuing event of default with respect to that series; |
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the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made written request, and such holders have offered reasonable indemnity, to the debenture trustee to institute the proceeding as trustee; and |
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the debenture trustee does not institute the proceeding and does not receive from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and offer. |
These limitations do not apply to a suit instituted
by a holder of debt securities if we default in the payment of the principal, premium, if any, or interest on, the debt securities.
We will periodically file statements with the
debenture trustee regarding our compliance with specified covenants in the indentures.
Modification of Indenture; Waiver
We and the debenture trustee may change an indenture without the consent
of any holders with respect to specific matters, including:
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to fix any ambiguity, defect or inconsistency in the indenture; |
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to comply with the provisions described above under “Consolidation, Merger or Sale”; |
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to comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act; |
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to evidence and provide for the acceptance of appointment hereunder by a successor trustee; |
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to provide for uncertificated debt securities and to make all appropriate changes for such purpose; |
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to add to, delete from, or revise the conditions, limitations and restrictions on the authorized amount, terms or purposes of issuance, authorization and delivery of debt securities or any series, as set forth in the indenture; |
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to provide for the issuance of and establish the form and terms and conditions of the debt securities of any series as provided under “General” to establish the form of any certifications required to be furnished pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the holders of any series of debt securities; |
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to add to our covenants such new covenants, restrictions, conditions or provisions for the protection of the holders, to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions an event of default, or to surrender any of our rights or powers under the indenture; or |
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to change anything that does not materially
adversely affect the interests of any holder of debt securities of any series. |
In addition, under the indentures, the rights
of holders of a series of debt securities may be changed by us and the debenture trustee with the written consent of the holders of at
least a majority in aggregate principal amount of the outstanding debt securities of each series that is affected. However, we and the
debenture trustee may only make the following changes with the consent of each holder of any outstanding debt securities affected:
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extending the fixed maturity of the series of debt securities; |
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reducing the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon the redemption of any debt securities; or |
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reducing the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification or waiver. |
Discharge
Each indenture provides that we can elect to be
discharged from our obligations with respect to one or more series of debt securities, except that the following obligations survive until
the maturity date or the redemption date:
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register the transfer or exchange of debt securities of the series; |
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replace stolen, lost or mutilated debt securities of the series; |
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maintain paying agencies; |
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hold monies for payment in trust; and |
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appoint any successor trustee; |
and the following obligations survive the maturity date or the redemption
date:
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recover excess money held by the debenture trustee; and |
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compensate and indemnify the debenture trustee. |
In order to exercise our rights to be discharged,
we must deposit with the debenture trustee money or government obligations sufficient to pay all the principal of, any premium, if any,
and interest on, the debt securities of the series on the dates payments are due.
Form, Exchange, and Transfer
We will issue the debt securities of each series
only in fully registered form without coupons and, unless we otherwise specify in the applicable prospectus supplement, in denominations
of $1,000 and any integral multiple thereof. The indentures provide that we may issue debt securities of a series in temporary or permanent
global form and as book-entry securities that will be deposited with, or on behalf of, The Depository Trust Company or another depositary
named by us and identified in a prospectus supplement with respect to that series.
At the option of the holder, subject to the terms
of the indentures and the limitations applicable to global securities described in the applicable prospectus supplement, the holder of
the debt securities of any series can exchange the debt securities for other debt securities of the same series, in any authorized denomination
and of like tenor and aggregate principal amount.
Subject to the terms of the indentures and the
limitations applicable to global securities set forth in the applicable prospectus supplement, holders of the debt securities may present
the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed thereon duly executed
if so required by us or the security registrar, at the office of the security registrar or at the office of any transfer agent designated
by us for this purpose. Unless otherwise provided in the debt securities that the holder presents for transfer or exchange, we will make
no service charge for any registration of transfer or exchange, but we may require payment of any taxes or other governmental charges.
We will name in the applicable prospectus supplement
the security registrar, and any transfer agent in addition to the security registrar, that we initially designate for any debt securities.
We may at any time designate additional transfer agents or rescind the designation of any transfer agent or approve a change in the office
through which any transfer agent acts, except that we will be required to maintain a transfer agent in each place of payment for the debt
securities of each series.
If we elect to redeem the debt securities of any series, we will not
be required to:
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issue, register the transfer of, or exchange any debt securities of any series being redeemed in part during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending at the close of business on the day of the mailing; or |
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register the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of any debt securities we are redeeming in part. |
Information Concerning the Debenture Trustee
The debenture trustee, other than during the occurrence
and continuance of an event of default under an indenture, undertakes to perform only those duties as are specifically set forth in the
applicable indenture. Upon an event of default under an indenture, the debenture trustee must use the same degree of care as a prudent
person would exercise or use in the conduct of his or her own affairs. Subject to this provision, the debenture trustee is under no obligation
to exercise any of the powers given it by the indentures at the request of any holder of debt securities unless it is offered reasonable
security and indemnity against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate in the applicable
prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the person in whose
name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record date for
the interest.
We will pay principal of and any premium and interest
on the debt securities of a particular series at the office of the paying agents designated by us, except that, unless we otherwise indicate
in the applicable prospectus supplement, we may make interest payments by check that we will mail to the holder or by wire transfer to
certain holders. Unless we otherwise indicate in a prospectus supplement, we will designate the corporate office of the debenture trustee
in the City of New York as our sole paying agent for payments with respect to debt securities of each series. We will name in the applicable
prospectus supplement any other paying agents that we initially designate for the debt securities of a particular series. We will maintain
a paying agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or the debenture
trustee for the payment of the principal of or any premium or interest on any debt securities that remains unclaimed at the end of two
years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the debt security thereafter
may look only to us for payment thereof.
Governing Law
The indentures and the debt securities will be
governed by and construed in accordance with the laws of the State of New York, except to the extent that the Trust Indenture Act is
applicable.
Subordination of Subordinated Debt Securities
The subordinated debt securities will be subordinate
and junior in priority of payment to certain of our other indebtedness to the extent described in a prospectus supplement. The indentures
in the forms initially filed as exhibits to the registration statement of which this prospectus is a part do not limit the amount of
indebtedness that we may incur, including senior indebtedness or subordinated indebtedness, and do not limit us from issuing any other
debt, including secured debt or unsecured debt.
DESCRIPTION OF RIGHTS
The complete terms of the rights will be contained
in the rights agreements we enter into with rights agents. These documents will be included or incorporated by reference as exhibits to
the registration statement of which this prospectus is a part. You should read the rights agreements and any related documents. You also
should read the prospectus supplement, which will contain additional information and which may update or change some of the information
below.
This section describes the general terms of the
rights to purchase common stock or other securities that we may offer to stockholders using this prospectus. Further terms of the rights
will be stated in the applicable prospectus supplement (or applicable free writing prospectus). The following description and any description
of the rights in a prospectus supplement (or applicable free writing prospectus) may not be complete and is subject to and qualified in
its entirety by reference to the terms of any agreement relating to the rights.
Rights may be issued independently or together
with any other security and may or may not be transferable. As part of any rights offering, we may enter into a standby underwriting or
other arrangement under which the underwriters or any other person would purchase any securities that are not purchased in such rights
offering. If we issue rights, each series of rights will be issued under a separate rights agreement to be entered into between us and
a bank or trust company, as rights agent, that will be named in the applicable prospectus supplement. Further terms of the rights will
be stated in the applicable prospectus supplement. The rights agent will act solely as our agent and will not assume any obligation to
any holders of rights certificates or beneficial owners of rights. The rights agreements and rights certificates will be filed with the
SEC as an exhibit to the registration statement of which this prospectus is a part or as an exhibit to a filing incorporated by reference
in the registration statement. See “Where You Can Find Additional Information” for information on how to obtain copies
of the rights agreements and rights certificates.
The prospectus supplement relating to any rights
we offer will describe the specific terms of the offering and the rights, including the record date for stockholders entitled to the rights
distribution, the number of rights issued and the number of shares of common stock that may be purchased upon exercise of the rights,
the exercise price of the rights, the date on which the rights will become effective and the date on which the rights will expire, and
any applicable U.S. federal income tax considerations.
In general, a right entitles the holder to purchase
for cash a specific number of shares of common stock or other securities at a specified exercise price. The rights are normally issued
to stockholders as of a specific record date, may be exercised only for a limited period of time and become void following the expiration
of such period. If we determine to issue rights, we will accompany this prospectus with a prospectus supplement that may describe, among
other things:
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the record date for stockholders entitled to receive the rights; |
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the number of shares of common stock or other securities that may be purchased upon exercise of each right; |
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the exercise price of the rights; |
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the terms for changes to or adjustments in the exercise price, if any; |
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whether the rights are transferable; |
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the period during which the rights may be exercised and when they will expire; |
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the steps required to exercise the rights; |
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whether the rights include “oversubscription rights” so that the holder may purchase more securities if other holders do not purchase their full allotments, if any; |
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whether we intend to sell the shares of common stock or other securities that are not purchased in the rights offering to an underwriter or other purchaser under a contractual “standby” commitment or other arrangement, if any; |
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the withdrawal, termination and cancellation rights, if any; |
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any material United States federal income tax consequences; and |
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other material terms, including terms relating to transferability, exchange, exercise or amendment of the rights. |
Each right will entitle the holder of rights to
purchase for cash the principal amount of shares of common stock, preferred stock or other securities at the exercise price provided in
the applicable prospectus supplement. Rights may be exercised at any time up to the close of business on the expiration date for the rights
provided in the applicable prospectus supplement.
If fewer than all of the rights issued in any
rights offering are exercised, we may offer any unsubscribed securities directly to persons other than stockholders, to or through agents,
underwriters or dealers or through a combination of such methods, including pursuant to standby arrangements, as described in the applicable
prospectus supplement. After the close of business on the expiration date, all unexercised rights will become void.
DESCRIPTION OF UNITS
We may issue units comprised of shares of common
stock, shares of preferred stock, debt securities, rights and warrants to purchase common stock 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 U.S. 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. 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 a particular series of units 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.
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.
PLAN OF DISTRIBUTION
We may sell the securities described herein, from
time to time in one or more offerings, by a variety of methods, including the following:
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on any national securities exchange or quotation service on which our securities may be listed at the time of sale, including the Nasdaq Capital Market; |
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in the over-the-counter market; |
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in transactions otherwise than on such exchange or in the over-the-counter market, which may include privately negotiated transactions and sales directly to one or more purchasers; |
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through one or more agents, including an “at the market” offering within the meaning of Rule 415(a)(4) under the Securities Act; |
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through ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
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through purchases by a broker-dealer as principal and resale by the broker-dealer for its account; |
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to or through underwriters, broker-dealers, agents, in privately negotiated transactions, or any combination of these methods; |
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through short sales; |
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through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
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by pledge to secure debts or other obligations; |
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block trades in which the broker-dealer so engaged will attempt to sell the securities as agent but may position and resell a portion of the block as principal to facilitate the transaction, or crosses in which the same broker acts as agent on both sides of the trade; |
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a combination of any of these methods; or |
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by any other method permitted pursuant to applicable law. |
We may sell the securities to or through one or
more underwriters or dealers (acting as principal or agent), through agents, or directly to one or more purchasers. We may distribute
the securities 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 varying prices determined at the time of sale; or |
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at negotiated prices. |
We will describe the
terms of the offering of the securities and the specific plan of distribution in a prospectus supplement or supplements to this prospectus,
any related free writing prospectus that we may authorize to be provided to you, an amendment to the registration statement of which this
prospectus is a part or other filings we make with the SEC under the Exchange Act that are incorporated by reference. Such description
may include, to the extent applicable:
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the name or names of any underwriters, dealers, agents or other purchasers; |
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the purchase price of the securities or other consideration therefor, and the proceeds, if any, we will receive from the sale; |
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any options to purchase additional shares or other options under which underwriters, dealers, agents or other purchasers may purchase additional securities from us; |
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any agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation; |
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any public offering price; |
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any discounts or concessions allowed or reallowed or paid to dealers; and |
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any securities exchange or market on which the securities may be listed. |
Only underwriters named
in the prospectus supplement will be underwriters of the securities offered by the prospectus supplement. Any dealers and agents participating
in the distribution of the securities may be deemed to be underwriters, and compensation received by them on resale of the securities
may be deemed to be underwriting discounts. If such dealers or agents were deemed to be underwriters, they may be subject to statutory
liabilities under the Securities Act.
If underwriters are used
in the sale, they will acquire the securities for their own account and may resell the securities from time to time in one or more transactions
at a fixed public offering price or at varying prices determined at the time of sale. The obligations of the underwriters to purchase
the securities will be subject to the conditions set forth in the applicable underwriting agreement. We may offer the securities to the
public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. Subject to certain
conditions, the underwriters will be obligated to purchase all of the securities offered by the prospectus supplement, other than securities
covered by any option to purchase additional shares or other option. If a dealer is used in the sale of securities, we or an underwriter,
will sell the securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to be
determined by the dealer at the time of resale. To the extent required, we will set forth in the prospectus supplement the name of the
dealer and the terms of the transaction. Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers
may change from time to time. We may use underwriters, dealers or agents with whom we have a material relationship. We will describe in
the prospectus supplement, naming the underwriter, dealer or agent, the nature of any such relationship.
We may sell securities
directly or through agents we designate from time to time. If required by applicable law, we will name any agent involved in the offering
and sale of securities and we will describe any commissions payable to the agent in the prospectus supplement. Unless the prospectus supplement
states otherwise, the agent will act on a best-efforts basis for the period of its appointment.
We may provide agents,
dealers and underwriters with indemnification against civil liabilities, including liabilities under the Securities Act, or contribution
with respect to payments that the agents or dealers or underwriters may make with respect to these liabilities. Agents, dealers and underwriters
or their affiliates may engage in transactions with, or perform services for us in the ordinary course of business.
We may engage in at-the-market
offerings into an existing trading market in accordance with rule 415(a)(4) under the Securities Act. In addition, we may enter into derivative
transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions.
If the applicable prospectus supplement so indicates, in connection with those derivatives, the third parties may sell securities covered
by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party may use securities
pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of common stock, and may
use securities received from us in settlement of those derivatives to close out any related open borrowings of our securities. In addition,
we may loan or pledge securities to a financial institution or other third party that in turn may sell the securities 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.
In addition,
any securities covered by this prospectus that qualify for sale under Rule 144 of the Securities Act may be sold under Rule 144 rather
than under this prospectus. To the extent that such members, partners or shareholders are not affiliates of ours, such members, partners
or stockholders would thereby receive freely tradable shares of the securities pursuant to the distribution through this prospectus.
All securities we may
offer, other than common stock, will be new issues of securities with no established trading market. Any underwriters may make a market
in these securities, but will not be obligated to do so and may discontinue any market making at any time without notice. We cannot guarantee
the liquidity of the trading markets for any securities.
Any underwriter may be
granted an option to purchase additional shares, and engage in stabilizing transactions, short-covering transactions and penalty bids
in accordance with Regulation M under the Exchange Act. An underwriter’s option to purchase additional shares involves sales in
excess of the offering size, which creates a short position. Stabilizing transactions permit bids to purchase the underlying security
so long as the stabilizing bids do not exceed a specified maximum price. Syndicate-covering or other short-covering transactions involve
purchases of the securities, either through exercise of the option to purchase additional shares or in the open market after the distribution
is completed, to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities
originally sold by the dealer are purchased in a stabilizing or covering transaction to cover short positions. Those activities may cause
the price of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities
at any time.
Any underwriters, dealers or agents that are qualified
market makers on the Nasdaq may engage in passive market making transactions in our common stock on the Nasdaq in accordance with Regulation
M under the Exchange Act, during the business day prior to the pricing of the offering, before the commencement of offers or sales of
the common stock. Passive market makers must comply with applicable volume and price limitations and must be identified as passive market
makers. In general, a passive market maker must display its bid at a price not in excess of the highest independent bid for such security;
if all independent bids are lowered below the passive market maker’s bid, however, the passive market maker’s bid must then
be lowered when certain purchase limits are exceeded. Passive market making may stabilize the market price of the securities at a level
above that which might otherwise prevail in the open market and, if commenced, may be discontinued at any time.
LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus
supplement, the validity of the securities offered hereby will be passed upon for us by Michelman & Robinson, LLP. If the validity
of the securities offered hereby in connection with offerings made pursuant to this prospectus are passed upon by counsel for the underwriters,
dealers or agents, if any, such counsel will be named in the prospectus supplement relating to such offering.
EXPERTS
The consolidated financial statements of iPower
Inc. as of and for the years ended June 30, 2023 and 2022, have been audited by UHY LLP, an independent registered public accounting firm,
as stated in its report which is incorporated by reference herein. Such financial statements have been incorporated by reference in reliance
on the report of such firm given upon its authority as experts in accounting and auditing.
LIMITATION ON LIABILITY AND DISCLOSURE OF COMMISSION
POSITION ON
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to our directors, officers and controlling persons pursuant to the foregoing provisions, or
otherwise, we have been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered,
we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by us is against public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of the registration statement
on Form S-3 we filed with the SEC under the Securities Act and does not contain all the information set forth in the registration statement.
Whenever a reference is made in this prospectus to any of our contracts, agreements or other documents, the reference may not be complete
and you should refer to the exhibits that are a part of the registration statement or the exhibits to the reports or other documents incorporated
by reference into this prospectus for a copy of such contract, agreement or other document. Because we are subject to the information
and reporting requirements of the Exchange Act, we file annual, quarterly and current reports, proxy statements and other information
with the SEC. Our SEC filings are available to the public over the Internet at the SEC’s website at http://www.sec.gov.
You may also access our SEC filings at our website
www.meetipower.com. Our website and the information contained on, or that can be accessed through, our website will not be deemed
to be incorporated by reference in, and are not considered part of, this prospectus. You should not rely on our website or any such information
in making your decision whether to purchase our securities.
INFORMATION INCORPORATED BY REFERENCE
We have elected to incorporate certain information
by reference into this prospectus. By incorporating by reference, we can disclose important information to you by referring you to other
documents we have filed or will file with the SEC. The information incorporated by reference is deemed to be part of this prospectus,
except for information incorporated by reference that is superseded by information contained in this prospectus. This means that you must
look at all of the SEC filings that we incorporate by reference to determine if any statements in the prospectus or any document previously
incorporated by reference have been modified or superseded. This prospectus incorporates by reference the documents set forth below that
we have previously filed with the SEC under the Exchange Act:
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Our Annual Report on Form 10-K for the year ended June 30, 2023, filed with the SEC on September 14, 2023, including any amendments or supplements thereto; |
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The description of our common stock contained in our registration on Form 8-A (File No. 001-40391) filed with the SEC on May 5, 2021, including any amendment or report filed for the purpose of updating such description. |
All documents subsequently filed by the Company
with the SEC pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of the initial filing of the registration
statement and prior to effectiveness of the registration statement that contains this prospectus and prior to the termination of the offering
(except in each case the information contained in such document to the extent “furnish” and not “filed”), shall
be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein, or in any other subsequently filed document which also is incorporated or deemed to be
incorporated by reference herein, modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration Statement.
PROSPECTUS
IPOWER INC.
$50,000,000
Common Stock
Preferred Stock
Warrants
Debt Securities
Rights
Units
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth our costs and expenses
in connection with the registration of our securities as described in this registration statement. All of the amounts shown are estimates
except the SEC registration fee.
| |
AMOUNT | |
SEC registration fee | |
$ | 5,510 | |
Printing and engraving costs | |
| * | |
Legal fees and expenses | |
| * | |
Accounting fees and expenses | |
| * | |
Transfer agent fees and expenses | |
| * | |
Miscellaneous expenses | |
| * | |
Total | |
$ | 5,510 | |
* Fees and expenses
(other than the SEC registration fee to be paid upon the filing of this registration statement) will depend on the number and nature of
the offerings, and cannot be estimated at this time. An estimate of the aggregate expenses in connection with the issuance and distribution
of securities being offered will be included in any applicable prospectus supplement.
Item 15. Indemnification of Directors and Officers.
We are a Nevada corporation and generally governed
by the Nevada Private Corporations Code, Title 78 of the Nevada Revised Statutes, or NRS.
Section 78.138 of the NRS provides that, unless
the corporation’s articles of incorporation provide otherwise, a director or officer will not be individually liable as a result
of any act or failure to act unless it is proven that (i) the director’s or officer’s acts or omissions constituted a breach
of his or her fiduciary duties, and (ii) such breach involved intentional misconduct, fraud or a knowing violation of the law.
Section 78.7502 of the NRS permits a Nevada corporation
to indemnify its directors and officers against expenses, judgments, fines, and amounts paid in settlement actually and reasonably incurred
in connection with a threatened, pending, or completed action, suit or proceeding, except an action by or on behalf of the corporation,
if the officer or director (i) is not liable pursuant to NRS 78.138, or (ii) acted in good faith and in a manner the officer or director
reasonably believed to be in or not opposed to the best interests of the corporation and, if a criminal action or proceeding, had no reasonable
cause to believe the conduct of the officer or director was unlawful. Section 78.7502 also provides that a corporation may not indemnify
a director or officer under this section with respect to an action by or on behalf of the corporation if such person has been adjudged
to be liable to the corporation or for amounts paid to the corporation in settlement of such claim unless and only to the extent the court
determines in view of all circumstances of the case, the person is fairly and reasonably entitled to indemnification. Indemnification
under NRS 78.7502 generally may be made by the corporation only if determined to be proper under the circumstances. Such determination
must be made by the stockholders, directors not a party to the action, or legal counsel.
Section 78.751 of the NRS requires a corporation
to indemnify its officers and directors if they have been successful on the merits or otherwise in defense of any claim, issue, or matter
resulting from their service as a director or officer. Section 78.751 of the NRS allows a corporation to advance expenses as incurred
upon receipt of an undertaking by or on behalf of the officer or director to repay the amount if it is ultimately determined by a court
of competent jurisdiction that such officer or director is not entitled to be indemnified by the corporation if so provided in the corporation’s
articles of incorporation, bylaws or other agreement. Advancement of expenses as incurred may be required under corporation’s articles
of incorporation or bylaws or by agreement. Section 78.751 of the NRS further permits the corporation to grant its directors and officers
additional rights of indemnification under its articles of incorporation, bylaws or other agreement.
Section 78.752 of the NRS provides that a Nevada
corporation may purchase and maintain insurance or make other financial arrangements on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee
or agent of another company, partnership, joint venture, trust or other enterprise, for any liability asserted against him and liability
and expenses incurred by him in his capacity as a director, officer, employee or agent, or arising out of his status as such, whether
or not the corporation has the authority to indemnify him against such liability and expenses.
Our Articles of Incorporation and Bylaws implement
the indemnification and insurance provisions permitted by Chapter 78 of the NRS by providing that:
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We shall indemnify our directors and officers to the fullest extent permitted by the NRS against expense, liability and loss reasonably incurred or suffered by them in connection with their service as an officer or director; and |
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We may purchase and maintain insurance on behalf of any person who holds or who has held a position as director, officer, employee or agent against liability, expense, or loss incurred by such person. |
At the present time, there is no pending litigation
or proceeding involving a director, officer, employee or other agent of ours in which indemnification would be required or permitted.
We are not aware of any threatened litigation or proceeding which may result in a claim for such indemnification.
Item 16. Exhibits.
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Filed herewith. |
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To the extent applicable, to be filed by a post-effective
amendment or as an exhibit to a document filed under the Exchange Act and incorporated by reference herein. |
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To be filed, if necessary, separately under
the electronic form type 305B2 pursuant to Section 305(B)(2) of the Trust Indenture Act of 1939, as amended. |
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Previously filed. |
Item 17. Undertakings.
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:
a. To
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended;
b. To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement; and
c. 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)(a), (b) and (c) 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 SEC by the registrant pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement, or is contained in a form of
prospectus filed pursuant to Rule 424(b) 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, each prospectus filed pursuant to Rule
424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than
prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it
is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is
part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use,
supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such date of first use.
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:
a. Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
b. 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;
c. 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
d. Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
6)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange
Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof
7)
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
8)
That for purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant
to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it
was declared effective.
9)
That for the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof.
10)
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 SEC 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 SEC such indemnification
is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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 Amendment No. 1 to the Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in Rancho Cucamonga, State of California, on the 28th day of September, 2023.
iPOWER INC. |
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By: |
/s/ Chenlong Tan |
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Name: |
Chenlong Tan |
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Title: |
Chief Executive Officer |
Pursuant to the requirements
of the Securities Act, as amended, this Amendment No. 1 to the Registration Statement has been signed below by the following persons
in the capacities and on the dates indicated.
Person |
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Capacity |
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Date |
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/s/ Chenlong Tan |
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Chairman of the Board of Directors, |
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September 28, 2023 |
Chenlong Tan |
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Chief Executive Officer and President (principal executive officer) |
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/s/ Kevin Vassily |
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Chief Financial Officer |
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September 28, 2023 |
Kevin Vassily |
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(principal financial and accounting officer) |
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* |
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Director |
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September 28, 2023 |
Bennet Tchaikovsky |
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* |
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Director |
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September 28, 2023 |
Kevin Liles |
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* |
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Director |
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September 28, 2023 |
Hanxi Li |
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*By: |
/s/ Chenlong Tan |
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Chenlong Tan |
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Attorney-in-Fact |
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Exhibit 4.5
IPOWER INC.
Issuer
AND
[TRUSTEE]
Trustee
INDENTURE
Dated as of [·], 20[·]
Senior Debt Securities
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS |
1 |
Section 1.01 Definitions of Terms. |
1 |
ARTICLE 2 ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
5 |
Section 2.01 Designation and Terms of Securities. |
5 |
Section 2.02 Form of Securities and Trustee’s Certificate. |
7 |
Section 2.03 Denominations: Provisions for Payment. |
7 |
Section 2.04 Execution and Authentication. |
8 |
Section 2.05 Registration of Transfer and Exchange. |
9 |
Section 2.06 Temporary Securities. |
10 |
Section 2.07 Mutilated, Destroyed, Lost or Stolen Securities. |
10 |
Section 2.08 Cancellation. |
11 |
Section 2.09 Benefits of Indenture. |
11 |
Section 2.10 Authenticating Agent. |
12 |
Section 2.11 Global Securities. |
12 |
ARTICLE 3 REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS |
13 |
Section 3.01 Redemption. |
13 |
Section 3.02 Notice of Redemption. |
13 |
Section 3.03 Payment Upon Redemption. |
14 |
Section 3.04 Sinking Fund. |
15 |
Section 3.05 Satisfaction of Sinking Fund Payments with Securities. |
15 |
Section 3.06 Redemption of Securities for Sinking Fund. |
15 |
ARTICLE 4 COVENANTS |
16 |
Section 4.01 Payment of Principal, Premium and Interest. |
16 |
Section 4.02 Maintenance of Office or Agency. |
16 |
Section 4.03 Paying Agents. |
16 |
Section 4.04 Appointment to Fill Vacancy in Office of Trustee. |
17 |
Section 4.05 Compliance with Consolidation Provisions. |
17 |
ARTICLE 5 SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
18 |
Section 5.01 Company to Furnish Trustee Names and Addresses of Securityholders. |
18 |
Section 5.02 Preservation Of Information; Communications With Securityholders. |
18 |
Section 5.03 Reports by the Company. |
18 |
Section 5.04 Reports by the Trustee. |
19 |
ARTICLE 6 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
19 |
Section 6.01 Events of Default. |
19 |
Section 6.02 Collection of Indebtedness and Suits for Enforcement by Trustee. |
21 |
Section 6.03 Application of Moneys or Property Collected. |
22 |
Section 6.04 Limitation on Suits. |
22 |
Section 6.05 Rights and Remedies Cumulative; Delay or Omission Not Waiver. |
23 |
Section 6.06 Control by Securityholders. |
24 |
Section 6.07 Undertaking to Pay Costs. |
24 |
ARTICLE 7 CONCERNING THE TRUSTEE |
25 |
Section 7.01 Certain Duties and Responsibilities of Trustee. |
25 |
Section 7.02 Certain Rights of Trustee. |
26 |
Section 7.03 Trustee Not Responsible for Recitals or Issuance or Securities. |
27 |
Section 7.04 May Hold Securities. |
27 |
Section 7.05 Moneys Held in Trust. |
27 |
Section 7.06 Compensation and Reimbursement. |
28 |
Section 7.07 Reliance on Officers’ Certificate. |
28 |
Section 7.08 Disqualification; Conflicting Interests. |
28 |
Section 7.09 Corporate Trustee Required; Eligibility. |
28 |
Section 7.10 Resignation and Removal; Appointment of Successor. |
29 |
Section 7.11 Acceptance of Appointment By Successor. |
30 |
Section 7.12 Merger, Conversion, Consolidation or Succession to Business. |
31 |
Section 7.13 Preferential Collection of Claims Against the Company. |
32 |
Section 7.14 Notice of Default |
32 |
ARTICLE 8 CONCERNING THE SECURITYHOLDERS |
32 |
Section 8.01 Evidence of Action by Securityholders. |
32 |
Section 8.02 Proof of Execution by Securityholders. |
33 |
Section 8.03 Who May be Deemed Owners. |
33 |
Section 8.04 Certain Securities Owned by Company Disregarded. |
33 |
Section 8.05 Actions Binding on Future Securityholders. |
34 |
ARTICLE 9 SUPPLEMENTAL INDENTURES |
34 |
Section 9.01 Supplemental Indentures Without the Consent of Securityholders. |
34 |
Section 9.02 Supplemental Indentures With Consent of Securityholders. |
35 |
Section 9.03 Effect of Supplemental Indentures. |
36 |
Section 9.04 Securities Affected by Supplemental Indentures. |
36 |
Section 9.05 Execution of Supplemental Indentures. |
36 |
ARTICLE 10 SUCCESSOR ENTITY |
37 |
Section 10.01 Company May Consolidate, Etc. |
37 |
Section 10.02 Successor Entity Substituted. |
37 |
Section 10.03 Evidence of Consolidation, Etc. to Trustee. |
38 |
ARTICLE 11 SATISFACTION AND DISCHARGE |
38 |
Section 11.01 Satisfaction and Discharge of Indenture. |
38 |
Section 11.02 Discharge of Obligations. |
39 |
Section 11.03 Deposited Moneys to be Held in Trust. |
39 |
Section 11.04 Payment of Moneys Held by Paying Agents. |
39 |
Section 11.05 Repayment to Company. |
39 |
ARTICLE 12 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
40 |
Section 12.01 No Recourse. |
40 |
ARTICLE 13 MISCELLANEOUS PROVISIONS |
40 |
Section 13.01 Effect on Successors and Assigns. |
40 |
Section 13.02 Actions by Successor. |
40 |
Section 13.03 Surrender of Company Powers. |
40 |
Section 13.04 Notices. |
41 |
Section 13.05 Governing Law. |
41 |
Section 13.06 Treatment of Securities as Debt. |
41 |
Section 13.07 Certificates and Opinions as to Conditions Precedent. |
41 |
Section 13.08 Payments on Business Days. |
42 |
Section 13.09 Conflict with Trust Indenture Act. |
42 |
Section 13.10 Indenture and Securities Solely Corporate Obligations. |
42 |
Section 13.11 Counterparts. |
42 |
Section 13.12 Separability. |
42 |
Section 13.13 Compliance Certificates. |
43 |
(1) |
This Table of Contents does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions. |
INDENTURE
INDENTURE, dated as of [·], 20[·],
among iPower Inc., a Nevada corporation (the “Company”), and [TRUSTEE], as trustee (the “Trustee”).
WHEREAS, for its lawful corporate purposes,
the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of debt securities (hereinafter
referred to as the “Securities”), in an unlimited aggregate principal amount to be issued from time to time in one or more
series as in this Indenture provided, as registered Securities without coupons, to be authenticated by the certificate of the Trustee;
WHEREAS, to provide the terms and conditions
upon which the Securities are to be authenticated, issued and delivered, the Company has duly authorized the execution of this Indenture;
and
WHEREAS, all things necessary to make this
Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the
premises and the purchase of the Securities by the holders thereof, it is mutually covenanted and agreed as follows for the equal and
ratable benefit of the holders of Securities:
ARTICLE
1
DEFINITIONS
Section 1.01 Definitions
of Terms.
The terms defined in this Section (except as in
this Indenture or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires) for all purposes
of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section and shall include
the plural as well as the singular. All other terms used in this Indenture that are defined in the Trust Indenture Act of 1939, as amended,
or that are by reference in such Act defined in the Securities Act of 1933, as amended (except as herein or any indenture supplemental
hereto otherwise expressly provided or unless the context otherwise requires), shall have the meanings assigned to such terms in said
Trust Indenture Act and in said Securities Act as in force at the date of the execution of this instrument.
“Authenticating Agent”
means an authenticating agent with respect to all or any of the series of Securities appointed by the Trustee pursuant to Section 2.10.
“Bankruptcy Law” means
Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
“Board of Directors”
means the Board of Directors of the Company or any duly authorized committee of such Board.
“Board Resolution” means
a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such certification.
“Business Day” means,
with respect to any series of Securities, any day other than a day on which federal or state banking institutions in the Borough of Manhattan,
the City of New York, or in the city of the Corporate Trust Office of the Trustee, are authorized or obligated by law, executive order
or regulation to close.
“Certificate” means
a certificate signed by any Officer. The Certificate need not comply with the provisions of Section 13.07.
“Company” means iPower
Inc., a corporation duly organized and existing under the laws of the State of Nevada, and, subject to the provisions of Article Ten,
shall also include its successors and assigns.
“Corporate Trust Office”
means the office of the Trustee at which, at any particular time, its corporate trust business shall be principally administered, which
office at the date hereof is located at.
“Custodian” means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Default” means any
event, act or condition that with notice or lapse of time, or both, would constitute an Event of Default.
“Depositary” means,
with respect to Securities of any series for which the Company shall determine that such Securities will be issued as a Global Security,
The Depository Trust Company, New York, New York, another clearing agency, or any successor registered as a clearing agency under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other applicable statute or regulation, which, in each
case, shall be designated by the Company pursuant to either Section 2.01 or 2.11.
“Event of Default” means,
with respect to Securities of a particular series, any event specified in Section 6.01, continued for the period of time, if any, therein
designated.
“Global Security” means,
with respect to any series of Securities, a Security executed by the Company and delivered by the Trustee to the Depositary or pursuant
to the Depositary’s instruction, all in accordance with the Indenture, which shall be registered in the name of the Depositary or
its nominee.
“Governmental Obligations”
means securities that are (a) direct obligations of the United States of America for the payment of which its full faith and credit is
pledged or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America that,
in either case, are not callable or redeemable at the option of the issuer thereof at any time prior to the stated maturity of the Securities,
and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to any such Governmental Obligation
or a specific payment of principal of or interest on any such Governmental Obligation held by such custodian for the account of the holder
of such depositary receipt; provided, however, that (except as required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the Governmental
Obligation or the specific payment of principal of or interest on the Governmental Obligation evidenced by such depositary receipt.
“herein”, “hereof”
and “hereunder”, and other words of similar import, refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
“Indenture” means this
instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto
entered into in accordance with the terms hereof.
“Interest Payment Date”,
when used with respect to any installment of interest on a Security of a particular series, means the date specified in such Security
or in a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date on which an installment
of interest with respect to Securities of that series is due and payable.
“Officer” means, with
respect to the Company, the chairman of the Board of Directors, a chief executive officer, a president, a chief financial officer, chief
operating officer, any executive vice president, any senior vice president, any vice president, the treasurer or any assistant treasurer,
the controller or any assistant controller or the secretary or any assistant secretary.
“Officers’ Certificate”
means a certificate signed by any two Officers. Each such certificate shall include the statements provided for in Section 13.07, if and
to the extent required by the provisions thereof.
“Opinion of Counsel”
means an opinion in writing subject to customary exceptions of legal counsel, who may be an employee of or counsel for the Company, that
is delivered to the Trustee in accordance with the terms hereof. Each such opinion shall include the statements provided for in Section
13.07, if and to the extent required by the provisions thereof.
“Outstanding”, when
used with reference to Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time, all Securities
of that series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore canceled
by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that have previously been canceled;
(b) Securities or portions thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary amount shall
have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside and segregated
in trust by the Company (if the Company shall act as its own paying agent); provided, however, that if such Securities or portions of
such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as in Article Three
provided, or provision satisfactory to the Trustee shall have been made for giving such notice; and (c) Securities in lieu of or in substitution
for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.07.
“Person” means any individual,
corporation, partnership, joint venture, joint-stock company, limited liability company, association, trust, unincorporated organization,
any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Predecessor Security”
of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.07 in lieu of a lost, destroyed
or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“Responsible Officer”
when used with respect to the Trustee means the chairman of its board of directors, the chief executive officer, the president, any vice
president, the secretary, the treasurer, any trust officer, any corporate trust officer or any other officer or assistant 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.
“Securities” means the
debt Securities authenticated and delivered under this Indenture.
“Securityholder”, “holder
of Securities”, “registered holder”, or other similar term, means the Person or Persons in whose name or names a particular
Security shall be registered on the books of the Company kept for that purpose in accordance with the terms of this Indenture.
“Security Register”
and “Security Registrar” shall have the meanings as set forth in Section 2.05.
“Subsidiary” means,
with respect to any Person, (i) any corporation at least a majority of whose outstanding Voting Stock shall at the time be owned, directly
or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, (ii) any general
partnership, joint venture or similar entity, at least a majority of whose outstanding partnership or similar interests shall at the time
be owned by such Person, or by one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries and (iii) any limited
partnership of which such Person or any of its Subsidiaries is a general partner.
“Trustee” means, and,
subject to the provisions of Article Seven, shall also include its successors and assigns, and, if at any time there is more than one
Person acting in such capacity hereunder, “Trustee” shall mean each such Person. The term “Trustee” as used with
respect to a particular series of the Securities shall mean the trustee with respect to that series.
“Trust Indenture Act”
means the Trust Indenture Act of 1939, as amended.
“Voting Stock”, as applied
to stock of any Person, means shares, interests, participations or other equivalents in the equity interest (however designated) in such
Person having ordinary voting power for the election of a majority of the directors (or the equivalent) of such Person, other than shares,
interests, participations or other equivalents having such power only by reason of the occurrence of a contingency.
ARTICLE
2
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
Section 2.01 Designation
and Terms of Securities.
(a)
The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The
Securities may be issued in one or more series up to the aggregate principal amount of Securities of that series from time to time authorized
by or pursuant to a Board Resolution or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities
of any series, there shall be established in or pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or established
in one or more indentures supplemental hereto:
(1)
the title of the Securities of the series (which shall distinguish the Securities of that series from all other Securities);
(2)
any limit upon the aggregate principal amount of the Securities of that series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities of that series);
(3)
the date or dates on which the principal of the Securities of the series is payable, any original issue discount that may apply
to the Securities of that series upon their issuance, the principal amount due at maturity, and the place(s) of payment;
(4)
the rate or rates at which the Securities of the series shall bear interest or the manner of calculation of such rate or rates,
if any;
(5)
the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest will be payable
or the manner of determination of such Interest Payment Dates, the place(s) of payment, and the record date for the determination of holders
to whom interest is payable on any such Interest Payment Dates or the manner of determination of such record dates;
(6)
the right, if any, to extend the interest payment periods and the duration of such extension, including the maximum consecutive
period during which interest payments may be extended;
(7)
the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the Company;
(8)
the obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund, mandatory
redemption, or analogous provisions (including payments made in cash in satisfaction of future sinking fund obligations) or at the option
of a holder thereof and the period or periods within which, the price or prices at which, and the terms and conditions upon which, Securities
of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(9)
the form of the Securities of the series including the form of the Certificate of Authentication for such series;
(10)
if other than denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, the denominations in which
the Securities of the series shall be issuable;
(11)
any and all other terms (including terms, to the extent applicable, relating to any auction or remarketing of the Securities
of that series and any security for the obligations of the Company with respect to such Securities) with respect to such series (which
terms shall not be inconsistent with the terms of this Indenture, as amended by any supplemental indenture) including any terms which
may be required by or advisable under United States laws or regulations or advisable in connection with the marketing of Securities of
that series;
(12)
whether the Securities are issuable as a Global Security and, in such case, the terms and the identity of the Depositary for
such series;
(13)
whether the Securities will be convertible into or exchangeable for shares of common stock or other securities of the Company
or any other Person and, if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, including
the conversion or exchange price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional (at the Company’s
option or the holders’ option) conversion or exchange features, and the applicable conversion or exchange period;
(14)
if other than the principal amount thereof, the portion, or methods of determining the portion, of the principal amount of
Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01;
(15)
any additional or different Events of Default or restrictive covenants (which may include, among other restrictions, restrictions
on the Company’s ability or the ability of the Company’s Subsidiaries to: incur additional indebtedness; issue additional
securities; create liens; pay dividends or make distributions in respect of their capital stock; redeem capital stock; place restrictions
on such Subsidiaries placing restrictions on their ability to pay dividends, make distributions or transfer assets; make investments or
other restricted payments; sell or otherwise dispose of assets; enter into sale-leaseback transactions; engage in transactions with stockholders
and affiliates; issue or sell stock of their Subsidiaries; or effect a consolidation or merger) or financial covenants (which may include,
among other financial covenants, financial covenants that require the Company and its Subsidiaries to maintain specified interest coverage,
fixed charge, cash flow-based or asset-based ratios) provided for with respect to the Securities of the series;
(16)
if other than dollars, the coin or currency in which the Securities of the series are denominated (including, but not limited
to, foreign currency);
(17)
the terms and conditions, if any, upon which the Company shall pay amounts in addition to the stated interest, premium, if
any and principal amounts of the Securities of the series to any Securityholder that is not a “United States person” for federal
tax purposes; and
(18)
any restrictions on transfer, sale or assignment of the Securities of the series.
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in or pursuant to any such Board Resolution or in any indentures
supplemental hereto.
If any of the terms of the series are established
by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of such action shall be certified by the
secretary or an assistant secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers’ Certificate
of the Company setting forth the terms of the series.
Securities of any particular series may be issued
at various times, with different dates on which the principal or any installment of principal is payable, with different rates of interest,
if any, or different methods by which rates of interest may be determined, with different dates on which such interest may be payable
and with different redemption dates.
Section 2.02 Form of
Securities and Trustee’s Certificate.
The Securities of any series and the Trustee’s
certificate of authentication to be borne by such Securities shall be substantially of the tenor and purport as set forth in one or more
indentures supplemental hereto or as provided in a Board Resolution, and set forth in an Officers’ Certificate, and they may have
such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved
thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange on
which Securities of that series may be listed, or to conform to usage.
Section 2.03 Denominations:
Provisions for Payment.
The Securities shall be issuable as registered
Securities and in the denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, subject to Section 2.01(a)(10).
The Securities of a particular series shall bear interest payable on the dates and at the rate specified with respect to that series.
Subject to Section 2.01(a)(16), the principal of and the interest on the Securities of any series, as well as any premium thereon in case
of redemption thereof prior to maturity, shall be payable in the coin or currency of the United States of America that at the time is
legal tender for public and private debt, at the office or agency of the Company maintained for that purpose in the State of California.
Each Security shall be dated the date of its authentication. Interest on the Securities shall be computed on the basis of a 360-day year
composed of twelve 30-day months.
The interest installment on any Security that
is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities of that series shall be paid to the
Person in whose name said Security (or one or more Predecessor Securities) is registered at the close of business on the regular record
date for such interest installment. In the event that any Security of a particular series or portion thereof is called for redemption
and the redemption date is subsequent to a regular record date with respect to any Interest Payment Date and prior to such Interest Payment
Date, interest on such Security will be paid upon presentation and surrender of such Security as provided in Section 3.03.
Any interest on any Security that is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date for Securities of the same series (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the registered holder on the relevant regular record date by virtue of having
been such holder; and such Defaulted Interest shall be paid by the Company, at its election, as provided in clause (1) or clause (2) below:
(1)
The Company may make payment of any Defaulted Interest on Securities to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered at the close of business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: the Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Security and the date of the proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a special
record date for the payment of such Defaulted Interest which shall not be more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such special record date and, in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the special record date therefor to be mailed, first class postage prepaid, to each Securityholder
at his or her address as it appears in the Security Register (as hereinafter defined), not less than 10 days prior to such special record
date. Notice of the proposed payment of such Defaulted Interest and the special record date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the Persons in whose names such Securities (or their respective Predecessor Securities) are
registered on such special record date.
(2)
The Company may make payment of any Defaulted Interest on any Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution
or one or more indentures supplemental hereto establishing the terms of any series of Securities pursuant to Section 2.01 hereof, the
term “regular record date” as used in this Section with respect to a series of Securities and any Interest Payment Date for
such series shall mean either the fifteenth day of the month immediately preceding the month in which an Interest Payment Date established
for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is the first day of a month, or the first day
of the month in which an Interest Payment Date established for such series pursuant to Section 2.01 hereof shall occur, if such Interest
Payment Date is the fifteenth day of a month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this Section,
each Security of a series delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Security of such
series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security.
Section 2.04 Execution
and Authentication.
The Securities shall be signed on behalf of the
Company by one of its Officers. Signatures may be in the form of a manual or facsimile signature.
The Company may use the facsimile signature of
any Person who shall have been an Officer, notwithstanding the fact that at the time the Securities shall be authenticated and delivered
or disposed of such Person shall have ceased to be such an officer of the Company. The Securities may contain such notations, legends
or endorsements required by law, stock exchange rule or usage. Each Security shall be dated the date of its authentication by the Trustee.
A Security shall not be valid until authenticated
manually by an authorized signatory of the Trustee, or by an Authenticating Agent. Such signature shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits of this
Indenture. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of
any series executed by the Company to the Trustee for authentication, together with a written order of the Company for the authentication
and delivery of such Securities, signed by an Officer, and the Trustee in accordance with such written order shall authenticate and deliver
such Securities.
In authenticating such Securities and accepting
the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject
to Section 7.01) shall be fully protected in relying upon, an Opinion of Counsel stating that the form and terms thereof have been established
in conformity with the provisions of this Indenture.
The Trustee shall not be required to authenticate
such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee.
Section 2.05 Registration
of Transfer and Exchange.
(a)
Securities of any series may be exchanged upon presentation thereof at the office or agency of the Company designated for such
purpose in the State of California, for other Securities of such series of authorized denominations, and for a like aggregate principal
amount, upon payment of a sum sufficient to cover any tax or other governmental charge in relation thereto, all as provided in this Section.
In respect of any Securities so surrendered for exchange, the Company shall execute, the Trustee shall authenticate and such office or
agency shall deliver in exchange therefor the Security or Securities of the same series that the Securityholder making the exchange shall
be entitled to receive, bearing numbers not contemporaneously outstanding.
(b)
The Company shall keep, or cause to be kept, at its office or agency designated for such purpose in the State of California,
or such other location designated by the Company, a register or registers (herein referred to as the “Security Register”)
in which, subject to such reasonable regulations as it may prescribe, the Company shall register the Securities and the transfers of Securities
as in this Article provided and which at all reasonable times shall be open for inspection by the Trustee. The registrar for the purpose
of registering Securities and transfer of Securities as herein provided shall be appointed as authorized by Board Resolution (the “Security
Registrar”).
Upon surrender for transfer of any Security at
the office or agency of the Company designated for such purpose, the Company shall execute, the Trustee shall authenticate and such office
or agency shall deliver in the name of the transferee or transferees a new Security or Securities of the same series as the Security presented
for a like aggregate principal amount.
All Securities presented or surrendered for exchange
or registration of transfer, as provided in this Section, shall be accompanied (if so required by the Company or the Security Registrar)
by a written instrument or instruments of transfer, in form satisfactory to the Company or the Security Registrar, duly executed by the
registered holder or by such holder’s duly authorized attorney in writing.
(c)
Except as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an Officers’ Certificate,
or established in one or more indentures supplemental to this Indenture, no service charge shall be made for any exchange or registration
of transfer of Securities, or issue of new Securities in case of partial redemption of any series, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge in relation thereto, other than exchanges pursuant to Section 2.06,
Section 3.03(b) and Section 9.04 not involving any transfer.
(d)
The Company shall not be required (i) to issue, exchange or register the transfer of any Securities during a period beginning
at the opening of business 15 days before the day of the mailing of a notice of redemption of less than all the Outstanding Securities
of the same series and ending at the close of business on the day of such mailing, nor (ii) to register the transfer of or exchange any
Securities of any series or portions thereof called for redemption, other than the unredeemed portion of any such Securities being redeemed
in part. The provisions of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.
Section 2.06 Temporary
Securities.
Pending the preparation of definitive Securities
of any series, the Company may execute, and the Trustee shall authenticate and deliver, temporary Securities (printed, lithographed or
typewritten) of any authorized denomination. Such temporary Securities shall be substantially in the form of the definitive Securities
in lieu of which they are issued, but with such omissions, insertions and variations as may be appropriate for temporary Securities, all
as may be determined by the Company. Every temporary Security of any series shall be executed by the Company and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities of such series.
Without unnecessary delay the Company will execute and will furnish definitive Securities of such series and thereupon any or all temporary
Securities of such series may be surrendered in exchange therefor (without charge to the holders), at the office or agency of the Company
designated for the purpose in the State of California, and the Trustee shall authenticate and such office or agency shall deliver in exchange
for such temporary Securities an equal aggregate principal amount of definitive Securities of such series, unless the Company advises
the Trustee to the effect that definitive Securities need not be executed and furnished until further notice from the Company. Until so
exchanged, the temporary Securities of such series shall be entitled to the same benefits under this Indenture as definitive Securities
of such series authenticated and delivered hereunder.
Section 2.07 Mutilated,
Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security shall
become mutilated or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence) shall execute, and upon the Company’s
request the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the same series, bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Security, or in lieu of and in substitution for the Security so destroyed,
lost or stolen. In every case the applicant for a substituted Security shall furnish to the Company and the Trustee such security or indemnity
as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish
to the Company and the Trustee evidence to their satisfaction of the destruction, loss or theft of the applicant’s Security and
of the ownership thereof. The Trustee may authenticate any such substituted Security and deliver the same upon the written request or
authorization of any officer of the Company. Upon the issuance of any substituted Security, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith.
In case any Security that has matured or is about
to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Security, pay or authorize
the payment of the same (without surrender thereof except in the case of a mutilated Security) if the applicant for such payment shall
furnish to the Company and the Trustee such security or indemnity as they may require to save them harmless, and, in case of destruction,
loss or theft, evidence to the satisfaction of the Company and the Trustee of the destruction, loss or theft of such Security and of the
ownership thereof.
Every replacement Security issued pursuant to
the provisions of this Section shall constitute an additional contractual obligation of the Company whether or not the mutilated, destroyed,
lost or stolen Security shall be found at any time, or be enforceable by anyone, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities of the same series duly issued hereunder. All Securities shall be held and
owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities, and shall preclude (to the extent lawful) any and all other rights or remedies, notwithstanding
any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments
or other securities without their surrender.
Section 2.08 Cancellation.
All Securities surrendered for the purpose of
payment, redemption, exchange or registration of transfer shall, if surrendered to the Company or any paying agent, be delivered to the
Trustee for cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and no Securities shall be issued in lieu thereof
except as expressly required or permitted by any of the provisions of this Indenture. In the absence of such request the Trustee may dispose
of canceled Securities in accordance with its standard procedures and deliver a certificate of disposition to the Company. If the Company
shall otherwise acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are delivered to the Trustee for cancellation.
Section 2.09 Benefits
of Indenture.
Nothing in this Indenture or in the Securities,
express or implied, shall give or be construed to give to any Person, other than the parties hereto and the holders of the Securities
any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant, condition or provision herein
contained; all such covenants, conditions and provisions being for the sole benefit of the parties hereto and of the holders of the Securities.
Section 2.10 Authenticating
Agent.
So long as any of the Securities of any series
remain Outstanding there may be an Authenticating Agent for any or all such series of Securities which the Trustee shall have the right
to appoint. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued
upon exchange, transfer or partial redemption thereof, and Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. All references in this Indenture to the
authentication of Securities by the Trustee shall be deemed to include authentication by an Authenticating Agent for such series. Each
Authenticating Agent shall be acceptable to the Company and shall be a corporation that has a combined capital and surplus, as most recently
reported or determined by it, sufficient under the laws of any jurisdiction under which it is organized or in which it is doing business
to conduct a trust business, and that is otherwise authorized under such laws to conduct such business and is subject to supervision or
examination by federal or state authorities. If at any time any Authenticating Agent shall cease to be eligible in accordance with these
provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign
by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time (and upon request by the Company
shall) terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the
Company. Upon resignation, termination or cessation of eligibility of any Authenticating Agent, the Trustee may appoint an eligible successor
Authenticating Agent acceptable to the Company. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall
become vested with all the rights, powers and duties of its predecessor hereunder as if originally named as an Authenticating Agent pursuant
hereto.
Section 2.11 Global
Securities.
(a)
If the Company shall establish pursuant to Section 2.01 that the Securities of a particular series are to be issued as a Global
Security, then the Company shall execute and the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security
that (i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, all of the Outstanding Securities
of such series, (ii) shall be registered in the name of the Depositary or its nominee, (iii) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary’s instruction and (iv) shall bear a legend substantially to the following effect: “Except
as otherwise provided in Section 2.11 of the Indenture, this Security may be transferred, in whole but not in part, only to another nominee
of the Depositary or to a successor Depositary or to a nominee of such successor Depositary.”
(b)
Notwithstanding the provisions of Section 2.05, the Global Security of a series may be transferred, in whole but not in part
and in the manner provided in Section 2.05, only to another nominee of the Depositary for such series, or to a successor Depositary for
such series selected or approved by the Company or to a nominee of such successor Depositary.
(c)
If at any time the Depositary for a series of the Securities notifies the Company that it is unwilling or unable to continue
as Depositary for such series or if at any time the Depositary for such series shall no longer be registered or in good standing under
the Exchange Act, or other applicable statute or regulation, and a successor Depositary for such series is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such condition, as the case may be, or if an Event of Default
has occurred and is continuing and the Company has received a request from the Depositary, this Section 2.11 shall no longer be applicable
to the Securities of such series and the Company will execute, and subject to Section 2.04, the Trustee will authenticate and deliver
the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security of such series in exchange for such Global Security. In addition, the Company
may at any time determine that the Securities of any series shall no longer be represented by a Global Security and that the provisions
of this Section 2.11 shall no longer apply to the Securities of such series. In such event the Company will execute and, subject to Section
2.04, the Trustee, upon receipt of an Officers’ Certificate evidencing such determination by the Company, will authenticate and
deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security. Upon the exchange
of the Global Security for such Securities in definitive registered form without coupons, in authorized denominations, the Global Security
shall be canceled by the Trustee. Such Securities in definitive registered form issued in exchange for the Global Security pursuant to
this Section 2.11(c) shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Depositary
for delivery to the Persons in whose names such Securities are so registered.
ARTICLE
3
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
Section 3.01 Redemption.
The Company may redeem the Securities of any series
issued hereunder on and after the dates and in accordance with the terms established for such series pursuant to Section 2.01 hereof.
Section 3.02 Notice
of Redemption.
(a)
In case the Company shall desire to exercise such right to redeem all or, as the case may be, a portion of the Securities of
any series in accordance with any right the Company reserved for itself to do so pursuant to Section 2.01 hereof, the Company shall, or
shall cause the Trustee to, give notice of such redemption to holders of the Securities of such series to be redeemed by mailing, first
class postage prepaid, a notice of such redemption not less than 30 days and not more than 90 days before the date fixed for redemption
of that series to such holders at their last addresses as they shall appear upon the Security Register, unless a shorter period is specified
in the Securities to be redeemed. Any notice that is mailed in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the registered holder receives the notice. In any case, failure duly to give such notice to the holder of any
Security of any series designated for redemption in whole or in part, or any defect in the notice, shall not affect the validity of the
proceedings for the redemption of any other Securities of such series or any other series. In the case of any redemption of Securities
prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture,
the Company shall furnish the Trustee with an Officers’ Certificate evidencing compliance with any such restriction.
Each such notice of redemption shall specify the
date fixed for redemption and the redemption price at which Securities of that series are to be redeemed, and shall state that payment
of the redemption price of such Securities to be redeemed will be made at the office or agency of the Company in the State of California,
upon presentation and surrender of such Securities, that interest accrued to the date fixed for redemption will be paid as specified in
said notice, that from and after said date interest will cease to accrue and that the redemption is for a sinking fund, if such is the
case. If less than all the Securities of a series are to be redeemed, the notice to the holders of Securities of that series to be redeemed
in part shall specify the particular Securities to be so redeemed.
In case any Security is to be redeemed in part
only, the notice that relates to such Security shall state the portion of the principal amount thereof to be redeemed, and shall state
that on and after the redemption date, upon surrender of such Security, a new Security or Securities of such series in principal amount
equal to the unredeemed portion thereof will be issued.
(b)
If less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 45 days’
notice (unless a shorter notice shall be satisfactory to the Trustee) in advance of the date fixed for redemption as to the aggregate
principal amount of Securities of the series to be redeemed, and thereupon the Trustee shall select, by lot or in such other manner as
it shall deem appropriate and fair in its discretion and that may provide for the selection of a portion or portions (equal to one thousand
U.S. dollars ($1,000) or any integral multiple thereof) of the principal amount of such Securities of a denomination larger than $1,000,
the Securities to be redeemed and shall thereafter promptly notify the Company in writing of the numbers of the Securities to be redeemed,
in whole or in part. The Company may, if and whenever it shall so elect, by delivery of instructions signed on its behalf by an Officer,
instruct the Trustee or any paying agent to call all or any part of the Securities of a particular series for redemption and to give notice
of redemption in the manner set forth in this Section, such notice to be in the name of the Company or its own name as the Trustee or
such paying agent may deem advisable. In any case in which notice of redemption is to be given by the Trustee or any such paying agent,
the Company shall deliver or cause to be delivered to, or permit to remain with, the Trustee or such paying agent, as the case may be,
such Security Register, transfer books or other records, or suitable copies or extracts therefrom, sufficient to enable the Trustee or
such paying agent to give any notice by mail that may be required under the provisions of this Section.
Section 3.03 Payment
Upon Redemption.
(a)
If the giving of notice of redemption shall have been completed as above provided, the Securities or portions of Securities
of the series to be redeemed specified in such notice shall become due and payable on the date and at the place stated in such notice
at the applicable redemption price, together with interest accrued to the date fixed for redemption and interest on such Securities or
portions of Securities shall cease to accrue on and after the date fixed for redemption, unless the Company shall default in the payment
of such redemption price and accrued interest with respect to any such Security or portion thereof. On presentation and surrender of such
Securities on or after the date fixed for redemption at the place of payment specified in the notice, said Securities shall be paid and
redeemed at the applicable redemption price for such series, together with interest accrued thereon to the date fixed for redemption (but
if the date fixed for redemption is an interest payment date, the interest installment payable on such date shall be payable to the registered
holder at the close of business on the applicable record date pursuant to Section 2.03).
(b)
Upon presentation of any Security of such series that is to be redeemed in part only, the Company shall execute and the Trustee
shall authenticate and the office or agency where the Security is presented shall deliver to the holder thereof, at the expense of the
Company, a new Security of the same series of authorized denominations in principal amount equal to the unredeemed portion of the Security
so presented.
Section 3.04 Sinking
Fund.
The provisions of Sections 3.04, 3.05 and 3.06
shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise specified as contemplated by
Section 2.01 for Securities of such series.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any
payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional
sinking fund payment”. If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 3.05. Each sinking fund payment shall be applied to the redemption of Securities of any
series as provided for by the terms of Securities of such series.
Section 3.05 Satisfaction
of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities
of a series and (ii) may apply as a credit Securities of a series that have been redeemed either at the election of the Company pursuant
to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities,
in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to
be made pursuant to the terms of such Securities as provided for by the terms of such series, provided that such Securities have not been
previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the redemption price specified
in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 3.06 Redemption
of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund
payment date for any series of Securities (unless a shorter period shall be satisfactory to the Trustee), the Company will deliver to
the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to
the terms of the series, the portion thereof, if any, that is to be satisfied by delivering and crediting Securities of that series pursuant
to Section 3.05 and the basis for such credit and will, together with such Officers’ Certificate, deliver to the Trustee any Securities
to be so delivered. Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 3.02 and cause notice of the redemption thereof to be given in
the name of and at the expense of the Company in the manner provided in Section 3.02. Such notice having been duly given, the redemption
of such Securities shall be made upon the terms and in the manner stated in Section 3.03.
ARTICLE
4
COVENANTS
Section 4.01 Payment
of Principal, Premium and Interest.
The Company will duly and punctually pay or cause
to be paid the principal of (and premium, if any) and interest on the Securities of that series at the time and place and in the manner
provided herein and established with respect to such Securities.
Section 4.02 Maintenance
of Office or Agency.
So long as any series of the Securities remain
Outstanding, the Company agrees to maintain an office or agency in the State of California, with respect to each such series and at such
other location or locations as may be designated as provided in this Section 4.02, where (i) Securities of that series may be presented
for payment, (ii) Securities of that series may be presented as herein above authorized for registration of transfer and exchange, and
(iii) notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be given or served,
such designation to continue with respect to such office or agency until the Company shall, by written notice signed by any officer authorized
to sign an Officers’ Certificate and delivered to the Trustee, designate some other office or agency for such purposes or any of
them. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations, notices and demands. The Company initially appoints the Corporate
Trust Office of the Trustee located in the State of California as its paying agent with respect to the Securities.
Section 4.03 Paying
Agents.
(a)
If the Company shall appoint one or more paying agents for all or any series of the Securities, other than the Trustee, the
Company will cause each such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section:
(1)
that it will hold all sums held by it as such agent for the payment of the principal of (and premium, if any) or interest on
the Securities of that series (whether such sums have been paid to it by the Company or by any other obligor of such Securities) in trust
for the benefit of the Persons entitled thereto;
(2)
that it will give the Trustee notice of any failure by the Company (or by any other obligor of such Securities) to make any
payment of the principal of (and premium, if any) or interest on the Securities of that series when the same shall be due and payable;
(3)
that it will, at any time during the continuance of any failure referred to in the preceding paragraph (a)(2) above, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent; and
(4)
that it will perform all other duties of paying agent as set forth in this Indenture.
(b)
If the Company shall act as its own paying agent with respect to any series of the Securities, it will on or before each due
date of the principal of (and premium, if any) or interest on Securities of that series, set aside, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay such principal (and premium, if any) or interest so becoming due on Securities
of that series until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the
Trustee of such action, or any failure (by it or any other obligor on such Securities) to take such action. Whenever the Company shall
have one or more paying agents for any series of Securities, it will, prior to each due date of the principal of (and premium, if any)
or interest on any Securities of that series, deposit with the paying agent a sum sufficient to pay the principal (and premium, if any)
or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest,
and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of this action or failure so to act.
(c)
Notwithstanding anything in this Section to the contrary, (i) the agreement to hold sums in trust as provided in this Section
is subject to the provisions of Section 11.05, and (ii) the Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or direct any paying agent to pay, to the Trustee all sums held in trust by
the Company or such paying agent, such sums to be held by the Trustee upon the same terms and conditions as those upon which such sums
were held by the Company or such paying agent; and, upon such payment by the Company or any paying agent to the Trustee, the Company or
such paying agent shall be released from all further liability with respect to such money.
Section 4.04 Appointment
to Fill Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill
a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall at all times
be a Trustee hereunder.
Section 4.05 Compliance
with Consolidation Provisions.
The Company will not, while any of the Securities
remain Outstanding, consolidate with or merge into any other Person, in either case where the Company is not the survivor of such transaction,
or sell or convey all or substantially all of its property to any other Person unless the provisions of Article Ten hereof are complied
with.
ARTICLE
5
SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 5.01 Company
to Furnish Trustee Names and Addresses of Securityholders.
The Company will furnish or cause to be furnished
to the Trustee (a) within 15 days after each regular record date (as defined in Section 2.03) a list, in such form as the Trustee may
reasonably require, of the names and addresses of the holders of each series of Securities as of such regular record date, provided that
the Company shall not be obligated to furnish or cause to furnish such list at any time that the list shall not differ in any respect
from the most recent list furnished to the Trustee by the Company and (b) at such other times as the Trustee may request in writing within
30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior
to the time such list is furnished; provided, however, that, in either case, no such list need be furnished for any series for which the
Trustee shall be the Security Registrar.
Section 5.02 Preservation
Of Information; Communications With Securityholders.
(a)
The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses
of the holders of Securities contained in the most recent list furnished to it as provided in Section 5.01 and as to the names and addresses
of holders of Securities received by the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b)
The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c)
Securityholders may communicate as provided in Section 312(b) of the Trust Indenture Act with other Securityholders with respect
to their rights under this Indenture or under the Securities, and, in connection with any such communications, the Trustee shall satisfy
its obligations under Section 312(b) of the Trust Indenture Act in accordance with the provisions of Section 312(b) of the Trust Indenture
Act.
Section 5.03 Reports
by the Company.
The Company covenants and agrees to provide a
copy to the Trustee, after the Company files the same with the Securities and Exchange Commission, copies of the annual reports and of
the information, documents and other reports (or copies of such portions of any of the foregoing as the Securities and Exchange Commission
may from time to time by rules and regulations prescribe) that the Company files with the Securities and Exchange Commission pursuant
to Section 13 or Section 15(d) of the Exchange Act; provided, however, the Company shall not be required to deliver to the Trustee any
materials for which the Company has sought and received confidential treatment by the Securities and Exchange Commission. The Company
shall also comply with the requirements of Section 314 of the Trust Indenture Act, but only to the extent then applicable to the Company.
Section 5.04 Reports
by the Trustee.
(a)
On or before July 1 in each year in which any of the Securities are Outstanding, the Trustee shall transmit by mail, first
class postage prepaid, to the Securityholders, as their names and addresses appear upon the Security Register, a brief report dated as
of the preceding May 1, if and to the extent required under Section 313(a) of the Trust Indenture Act.
(b)
The Trustee shall comply with Section 313(b) and 313(c) of the Trust Indenture Act.
(c) A copy of each
such report shall, at the time of such transmission to Securityholders, be filed by the Trustee with the Company, with each securities
exchange upon which any Securities are listed (if so listed) and also with the Securities and Exchange Commission. The Company agrees
to notify the Trustee when any Securities become listed on any securities exchange.
ARTICLE
6
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 6.01 Events of
Default.
(a)
Whenever used herein with respect to Securities of a particular series, “Event of Default” means any one or more
of the following events that has occurred and is continuing:
(1)
the Company defaults in the payment of any installment of interest upon any of the Securities of that series, as and when the
same shall become due and payable, and such default continues for a period of 30 days; provided, however, that a valid extension of an
interest payment period by the Company in accordance with the terms of any indenture supplemental hereto shall not constitute a default
in the payment of interest for this purpose;
(2)
the Company defaults in the payment of the principal of (or premium, if any, on) any of the Securities of that series as and
when the same shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required
by any sinking or analogous fund established with respect to that series; provided, however, that a valid extension of the maturity of
such Securities in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment of principal
or premium, if any;
(3)
the Company fails to observe or perform any other of its covenants or agreements with respect to that series contained in this
Indenture or otherwise established with respect to that series of Securities pursuant to Section 2.01 hereof (other than a covenant or
agreement that has been expressly included in this Indenture solely for the benefit of one or more series of Securities other than such
series) for a period of 90 days after the date on which written notice of such failure, requiring the same to be remedied and stating
that such notice is a “Notice of Default” hereunder, shall have been given to the Company by the Trustee, by registered or
certified mail, or to the Company and the Trustee by the holders of at least 25% in principal amount of the Securities of that series
at the time Outstanding;
(4)
the Company pursuant to or within the meaning of any Bankruptcy Law (i) commences a voluntary case, (ii) consents to the entry
of an order for relief against it in an involuntary case, (iii) consents to the appointment of a Custodian of it or for all or substantially
all of its property or (iv) makes a general assignment for the benefit of its creditors; or
(5) a court of competent
jurisdiction enters an order under any Bankruptcy Law that (i) is for relief against the Company in an involuntary case, (ii) appoints
a Custodian of the Company for all or substantially all of its property or (iii) orders the liquidation of the Company, and the order
or decree remains unstayed and in effect for 90 days.
(b)
In each and every such case (other than an Event of Default specified in clause (4) or clause (5) above), unless the principal
of all the Securities of that series shall have already become due and payable, either the Trustee or the holders of not less than 25%
in aggregate principal amount of the Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to
the Trustee if given by such Securityholders), may declare the principal of (and premium, if any, on) and accrued and unpaid interest
on all the Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall
be immediately due and payable. If an Event of Default specified in clause (4) or clause (5) above occurs, the principal of and accrued
and unpaid interest on all the Securities of that series shall automatically be immediately due and payable without any declaration or
other act on the part of the Trustee or the holders of the Securities.
(c)
At any time after the principal of (and premium, if any, on) and accrued and unpaid interest on the Securities of that series
shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the holders of a majority in aggregate principal amount of the Securities of that series then Outstanding
hereunder, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (i) the Company
has paid or deposited with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of that series
and the principal of (and premium, if any, on) any and all Securities of that series that shall have become due otherwise than by acceleration
(with interest upon such principal and premium, if any, and, to the extent that such payment is enforceable under applicable law, upon
overdue installments of interest, at the rate per annum expressed in the Securities of that series to the date of such payment or deposit)
and the amount payable to the Trustee under Section 7.06, and (ii) any and all Events of Default under the Indenture with respect to such
series, other than the nonpayment of principal on (and premium, if any, on) and accrued and unpaid interest on Securities of that series
that shall not have become due by their terms, shall have been remedied or waived as provided in Section 6.06.
No such rescission and annulment shall extend
to or shall affect any subsequent default or impair any right consequent thereon.
(d)
In case the Trustee shall have proceeded to enforce any right with respect to Securities of that series under this Indenture
and such proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall
have been determined adversely to the Trustee, then and in every such case, subject to any determination in such proceedings, the Company
and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of
the Company and the Trustee shall continue as though no such proceedings had been taken.
Section 6.02 Collection
of Indebtedness and Suits for Enforcement by Trustee.
(a)
The Company covenants that (i) in case it shall default in the payment of any installment of interest on any of the Securities
of a series, or in any payment required by any sinking or analogous fund established with respect to that series as and when the same
shall have become due and payable, and such default shall have continued for a period of 90 Business Days, or (ii) in case it shall default
in the payment of the principal of (or premium, if any, on) any of the Securities of a series when the same shall have become due and
payable, whether upon maturity of the Securities of a series or upon redemption or upon declaration or otherwise then, upon demand of
the Trustee, the Company will pay to the Trustee, for the benefit of the holders of the Securities of that series, the whole amount that
then shall have been become due and payable on all such Securities for principal (and premium, if any) or interest, or both, as the case
may be, with interest upon the overdue principal (and premium, if any) and (to the extent that payment of such interest is enforceable
under applicable law) upon overdue installments of interest at the rate per annum expressed in the Securities of that series; and, in
addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, and the amount payable to
the Trustee under Section 7.06.
(b)
If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums
so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final
decree against the Company or other obligor upon the Securities of that series and collect the moneys adjudged or decreed to be payable
in the manner provided by law or equity out of the property of the Company or other obligor upon the Securities of that series, wherever
situated.
(c)
In case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or
judicial proceedings affecting the Company, or its creditors or property, the Trustee shall have power to intervene in such proceedings
and take any action therein that may be permitted by the court and shall (except as may be otherwise provided by law) be entitled to file
such proofs of claim and other papers and documents as may be necessary or advisable in order to have the claims of the Trustee and of
the holders of Securities of such series allowed for the entire amount due and payable by the Company under the Indenture at the date
of institution of such proceedings and for any additional amount that may become due and payable by the Company after such date, and to
collect and receive any moneys or other property payable or deliverable on any such claim, and to distribute the same after the deduction
of the amount payable to the Trustee under Section 7.06; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the holders of Securities of such series to make such payments to the Trustee, and, in the event that the Trustee
shall consent to the making of such payments directly to such Securityholders, to pay to the Trustee any amount due it under Section 7.06.
(d)
All rights of action and of asserting claims under this Indenture, or under any of the terms established with respect to Securities
of that series, may be enforced by the Trustee without the possession of any of such Securities, or the production thereof at any trial
or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall, after provision for payment to the Trustee of any amounts due under Section 7.06,
be for the ratable benefit of the holders of the Securities of such series.
In case of an Event of Default hereunder, the
Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or agreement contained in the Indenture or in aid of the exercise of any power granted
in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
Nothing contained herein shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities of that series or the rights of any holder thereof or to authorize the Trustee to vote in respect
of the claim of any Securityholder in any such proceeding.
Section 6.03 Application
of Moneys or Property Collected.
Any moneys or property collected by the Trustee
pursuant to this Article with respect to a particular series of Securities shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such moneys or property on account of principal (or premium, if any) or interest,
upon presentation of the Securities of that series, and notation thereon of the payment, if only partially paid, and upon surrender thereof
if fully paid:
FIRST: To the payment of reasonable costs and
expenses of collection and of all amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of the amounts then due
and unpaid upon Securities of such series for principal (and premium, if any) and interest, in respect of which or for the benefit of
which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on
such Securities for principal (and premium, if any) and interest, respectively; and
THIRD: To the payment of the remainder, if any,
to the Company or any other Person lawfully entitled thereto as requested by the Company.
Section 6.04 Limitation
on Suits.
No holder of any Security of any series shall
have any right by virtue or by availing of any provision of this Indenture to institute any suit, action or proceeding in equity or at
law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other remedy hereunder,
unless (i) such holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof
with respect to the Securities of such series specifying such Event of Default, as hereinbefore provided; (ii) the holders of not less
than 25% in aggregate principal amount of the Securities of such series then Outstanding shall have made written request upon the Trustee
to institute such action, suit or proceeding in its own name as Trustee hereunder; (iii) such holder or holders shall have offered to
the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby;
(iv) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity, shall have failed to institute any such
action, suit or proceeding and (v) during such 60 day period, the holders of a majority in principal amount of the Securities of that
series do not give the Trustee a direction inconsistent with the request.
Notwithstanding anything contained herein to the
contrary or any other provisions of this Indenture, the right of any holder of any Security to receive payment of the principal of (and
premium, if any) and interest on such Security, as therein provided, on or after the respective due dates expressed in such Security (or
in the case of redemption, on the redemption date), or to institute suit for the enforcement of any such payment on or after such respective
dates or redemption date, shall not be impaired or affected without the consent of such holder and by accepting a Security hereunder it
is expressly understood, intended and covenanted by the taker and holder of every Security of such series with every other such taker
and holder and the Trustee, that no one or more holders of Securities of such series shall have any right in any manner whatsoever by
virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of the holders of any other of such
Securities, or to obtain or seek to obtain priority over or preference to any other such holder, or to enforce any right under this Indenture,
except in the manner herein provided and for the equal, ratable and common benefit of all holders of Securities of such series. For the
protection and enforcement of the provisions of this Section, each and every Securityholder and the Trustee shall be entitled to such
relief as can be given either at law or in equity.
Section 6.05 Rights
and Remedies Cumulative; Delay or Omission Not Waiver.
(a)
Except as otherwise provided in Section 2.07, all powers and remedies given by this Article to the Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive of any other powers and remedies available to the Trustee
or the holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture or otherwise established with respect to such Securities.
(b)
No delay or omission of the Trustee or of any holder of any of the Securities to exercise any right or power accruing upon
any Event of Default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver
of any such default or an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by this Article
or by law to the Trustee or the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Securityholders.
Section 6.06 Control
by Securityholders.
The holders of a majority in aggregate principal
amount of the Securities of any series at the time Outstanding, determined in accordance with Section 8.04, shall have the right to direct
the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee with respect to such series; provided, however, that such direction shall not be in conflict with any rule of law or with
this Indenture. Subject to the provisions of Section 7.01, the Trustee shall have the right to decline to follow any such direction if
the Trustee in good faith shall, by a Responsible Officer or officers of the Trustee, determine that the proceeding so directed, subject
to the Trustee’s duties under the Trust Indenture Act, would involve the Trustee in personal liability or might be unduly prejudicial
to the Securityholders not involved in the proceeding. The holders of a majority in aggregate principal amount of the Securities of any
series at the time Outstanding affected thereby, determined in accordance with Section 8.04, may on behalf of the holders of all of the
Securities of such series waive any past default in the performance of any of the covenants contained herein or established pursuant to
Section 2.01 with respect to such series and its consequences, except a default in the payment of the principal of, or premium, if any,
or interest on, any of the Securities of that series as and when the same shall become due by the terms of such Securities otherwise than
by acceleration (unless such default has been cured and a sum sufficient to pay all matured installments of interest and principal and
any premium has been deposited with the Trustee (in accordance with Section 6.01(c)). Upon any such waiver, the default covered thereby
shall be deemed to be cured for all purposes of this Indenture and the Company, the Trustee and the holders of the Securities of such
series shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
Section 6.07 Undertaking
to Pay Costs.
All parties to this Indenture agree, and each
holder of any Securities by such holder’s acceptance thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action
taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant
in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions
of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder, or group of Securityholders,
holding more than 10% in aggregate principal amount of the Outstanding Securities of any series, or to any suit instituted by any Securityholder
for the enforcement of the payment of the principal of (or premium, if any) or interest on any Security of such series, on or after the
respective due dates expressed in such Security or established pursuant to this Indenture.
ARTICLE
7
CONCERNING THE TRUSTEE
Section 7.01 Certain
Duties and Responsibilities of Trustee.
(a)
The Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing
of all Events of Default with respect to the Securities of that series that may have occurred, shall undertake to perform with respect
to the Securities of such series such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants
shall be read into this Indenture against the Trustee. In case an Event of Default with respect to the Securities of a series has occurred
(that has not been cured or waived), the Trustee shall exercise with respect to Securities of that series such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(b)
No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1)
prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing or waiving of
all such Events of Default with respect to that series that may have occurred:
(A)
the duties and obligations of the Trustee shall with respect to the Securities of such series be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable with respect to the Securities of such series except for the performance
of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(B)
in the absence of bad faith on the part of the Trustee, the Trustee may with respect to the Securities of such series conclusively
rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirement of this Indenture;
(i)
the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers
of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(ii)
the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with
the direction of the holders of not less than a majority in principal amount of the Securities of any series at the time Outstanding relating
to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee under this Indenture with respect to the Securities of that series; and
(iii)
None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers if there is reasonable
ground for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Indenture or
adequate indemnity against such risk is not reasonably assured to it.
Section 7.02 Certain
Rights of Trustee.
Except as otherwise provided in Section 7.01:
(a)
The Trustee may rely conclusively and shall be protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order, approval, bond, security or other paper or document believed
by it to be genuine and to have been signed or presented by the proper party or parties;
(b)
Any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution
or an instrument signed in the name of the Company by any authorized officer of the Company (unless other evidence in respect thereof
is specifically prescribed herein);
(c)
The Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or omitted hereunder in good faith and in reliance thereon;
(d)
The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that may be incurred therein or thereby;
nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default with respect
to a series of the Securities (that has not been cured or waived), to exercise with respect to Securities of that series such of the rights
and powers vested in it by this Indenture, and to use the same degree of care and skill in their exercise, as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs;
(e)
The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this Indenture;
(f)
The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, security, or other papers or documents, unless requested
in writing so to do by the holders of not less than a majority in principal amount of the Outstanding Securities of the particular series
affected thereby (determined as provided in Section 8.04); provided, however, that if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable
indemnity against such costs, expenses or liabilities as a condition to so proceeding. The reasonable expense of every such examination
shall be paid by the Company or, if paid by the Trustee, shall be repaid by the Company upon demand; and
(g)
The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
In addition, the Trustee shall not be deemed to
have knowledge of any Default or Event of Default except (1) any Event of Default occurring pursuant to Sections 6.01(a)(1), 6.01(a)(2)
and 4.01 hereof or (2) any Default or Event of Default of which the Trustee shall have received written notification in the manner set
forth in this Indenture or a Responsible Officer of the Trustee shall have obtained actual knowledge. Delivery of reports, information
and documents to the Trustee under Section 5.03 is for informational purposes only and the information and the Trustee’s receipt
of the foregoing shall not constitute constructive notice of any information contained therein, or determinable from information contained
therein including the Company’s compliance with any of their covenants thereunder (as to which the Trustee is entitled to rely conclusively
on an Officers’ Certificate).
Section 7.03 Trustee
Not Responsible for Recitals or Issuance or Securities.
(a)
The recitals contained herein and in the Securities shall be taken as the statements of the Company, and the Trustee assumes
no responsibility for the correctness of the same.
(b)
The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities.
(c)
The Trustee shall not be accountable for the use or application by the Company of any of the Securities or of the proceeds
of such Securities, or for the use or application of any moneys paid over by the Trustee in accordance with any provision of this Indenture
or established pursuant to Section 2.01, or for the use or application of any moneys received by any paying agent other than the Trustee.
Section 7.04 May
Hold Securities.
The Trustee or any paying agent or Security Registrar,
in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not
Trustee, paying agent or Security Registrar.
Section 7.05 Moneys
Held in Trust.
Subject to the provisions of Section 11.05, all
moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were
received, but need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for
interest on any moneys received by it hereunder except such as it may agree with the Company to pay thereon.
Section 7.06 Compensation
and Reimbursement.
(a)
The Company covenants and agrees to pay to the Trustee, and the Trustee shall be entitled to, such reasonable compensation
(which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) as the Company and
the Trustee may from time to time agree in writing, for all services rendered by it in the execution of the trusts hereby created and
in the exercise and performance of any of the powers and duties hereunder of the Trustee, and, except as otherwise expressly provided
herein, the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred
or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses
and disbursements of its counsel and of all Persons not regularly in its employ), except any such expense, disbursement or advance as
may arise from its negligence or bad faith and except as the Company and Trustee may from time to time agree in writing. The Company also
covenants to indemnify the Trustee (and its officers, agents, directors and employees) for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on the part of the Trustee and arising out of or in connection with the
acceptance or administration of this trust, including the reasonable costs and expenses of defending itself against any claim of liability
in the premises.
(b)
The obligations of the Company under this Section to compensate and indemnify the Trustee and to pay or reimburse the Trustee
for reasonable expenses, disbursements and advances shall constitute additional indebtedness hereunder. Such additional indebtedness shall
be secured by a lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the holders of particular Securities.
Section 7.07 Reliance
on Officers’ Certificate.
Except as otherwise provided in Section 7.01,
whenever in the administration of the provisions of this Indenture the Trustee shall deem it reasonably necessary or desirable that a
matter be proved or established prior to taking or suffering or omitting to take any action hereunder, such matter (unless other evidence
in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed
to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee and such certificate, in the absence
of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted
to be taken by it under the provisions of this Indenture upon the faith thereof.
Section 7.08 Disqualification;
Conflicting Interests.
If the Trustee has or shall acquire any “conflicting
interest” within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the Company shall in all respects comply
with the provisions of Section 310(b) of the Trust Indenture Act.
Section 7.09 Corporate
Trustee Required; Eligibility.
There shall at all times be a Trustee with respect
to the Securities issued hereunder which shall at all times be a corporation organized and doing business under the laws of the United
States of America or any state or territory thereof or of the District of Columbia, or a corporation or other Person permitted to act
as trustee by the Securities and Exchange Commission, authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision or examination by federal, state,
territorial, or District of Columbia authority.
If such corporation or other Person publishes
reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such corporation or other Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so published. The Company may not, nor may any Person directly
or indirectly controlling, controlled by, or under common control with the Company, serve as Trustee. In case at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign immediately in the manner and with
the effect specified in Section 7.10.
Section 7.10 Resignation
and Removal; Appointment of Successor.
(a)
The Trustee or any successor hereafter appointed may at any time resign with respect to the Securities of one or more series
by giving written notice thereof to the Company and by transmitting notice of resignation by mail, first class postage prepaid, to the
Securityholders of such series, as their names and addresses appear upon the Security Register.
Upon receiving such notice of resignation, the
Company shall promptly appoint a successor trustee with respect to Securities of such series by written instrument, in duplicate, executed
by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor
trustee. If no successor trustee shall have been so appointed and have accepted appointment within 30 days after the mailing of such notice
of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee with
respect to Securities of such series, or any Securityholder of that series who has been a bona fide holder of a Security or Securities
for at least six months may on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(b)
In case at any time any one of the following shall occur:
(1)
the Trustee shall fail to comply with the provisions of Section 7.08 after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a Security or Securities for at least six months; or
(2)
the Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 and shall fail to resign after written
request therefor by the Company or by any such Securityholder; or
(3)
the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy
proceeding, or a receiver of the Trustee or of its property shall be appointed or consented to, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation; then, in any such
case, the Company may remove the Trustee with respect to all Securities and appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to
the successor trustee, or any Securityholder who has been a bona fide holder of a Security or Securities for at least six months may,
on behalf of that holder and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, remove
the Trustee and appoint a successor trustee.
(c)
The holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may at any
time remove the Trustee with respect to such series by so notifying the Trustee and the Company and may appoint a successor Trustee for
such series with the consent of the Company.
(d)
Any resignation or removal of the Trustee and appointment of a successor trustee with respect to the Securities of a series
pursuant to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided
in Section 7.11.
(e)
Any successor trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more series
or all of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series.
Section 7.11 Acceptance
of Appointment By Successor.
(a)
In case of the appointment hereunder of a successor trustee with respect to all Securities, every such successor trustee so
appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring
to such successor trustee all the rights, powers, and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such
successor trustee all property and money held by such retiring Trustee hereunder.
(b)
In case of the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all) series,
the Company, the retiring Trustee and each successor trustee with respect to the Securities of one or more series shall execute and deliver
an indenture supplemental hereto wherein each successor trustee shall accept such appointment and which (i) shall contain such provisions
as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor trustee
relates, (ii) shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee
and that no Trustee shall be responsible for any act or failure to act on the part of any other Trustee hereunder; and upon the execution
and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided
therein, such retiring Trustee shall with respect to the Securities of that or those series to which the appointment of such successor
trustee relates have no further responsibility for the exercise of rights and powers or for the performance of the duties and obligations
vested in the Trustee under this Indenture, and each such successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor trustee relates; but, on request of the Company or any successor trustee, such retiring Trustee
shall duly assign, transfer and deliver to such successor trustee, to the extent contemplated by such supplemental indenture, the property
and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such
successor trustee relates.
(c)
Upon request of any such successor trustee, the Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section,
as the case may be.
(d)
No successor trustee shall accept its appointment unless at the time of such acceptance such successor trustee shall be qualified
and eligible under this Article.
(e)
Upon acceptance of appointment by a successor trustee as provided in this Section, the Company shall transmit notice of the
succession of such trustee hereunder by mail, first class postage prepaid, to the Securityholders, as their names and addresses appear
upon the Security Register. If the Company fails to transmit such notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be transmitted at the expense of the Company.
Section 7.12 Merger,
Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which the Trustee shall be a party, or any corporation succeeding to the corporate trust business of the Trustee, shall be the successor
of the Trustee hereunder, provided that such corporation shall be qualified under the provisions of Section 7.08 and eligible under the
provisions of Section 7.09, without the execution or filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 7.13 Preferential
Collection of Claims Against the Company.
The Trustee shall comply with Section 311(a) of
the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
Section 7.14 Notice
of Default
If any Default or any Event of Default occurs
and is continuing and if such Default or Event of Default is known to a Responsible Officer of the Trustee, the Trustee shall mail to
each Securityholder in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act notice of the Default or Event
of Default within 90 days after it occurs and becomes known to the Trustee, unless such Default or Event of Default has been cured; provided,
however, that, except in the case of a default in the payment of the principal of (or premium, if any) or interest on any Security,
the Trustee shall be protected in withholding such notice if and so long as the 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 Securityholders.
ARTICLE
8
CONCERNING THE SECURITYHOLDERS
Section 8.01 Evidence
of Action by Securityholders.
Whenever in this Indenture it is provided that
the holders of a majority or specified percentage in aggregate principal amount of the Securities of a particular series may take any
action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action),
the fact that at the time of taking any such action the holders of such majority or specified percentage of that series have joined therein
may be evidenced by any instrument or any number of instruments of similar tenor executed by such holders of Securities of that series
in person or by agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders
of any series any request, demand, authorization, direction, notice, consent, waiver or other action, the Company may, at its option,
as evidenced by an Officers’ Certificate, fix in advance a record date for such series for the determination of Securityholders
entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action, but the Company shall have no
obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other
action may be given before or after the record date, but only the Securityholders of record at the close of business on the record date
shall be deemed to be Securityholders for the purposes of determining whether Securityholders of the requisite proportion of Outstanding
Securities of that series have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver
or other action, and for that purpose the Outstanding Securities of that series shall be computed as of the record date; provided, however,
that no such authorization, agreement or consent by such Securityholders on the record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later than six months after the record date.
Section 8.02 Proof of
Execution by Securityholders.
Subject to the provisions of Section 7.01, proof
of the execution of any instrument by a Securityholder (such proof will not require notarization) or his agent or proxy and proof of the
holding by any Person of any of the Securities shall be sufficient if made in the following manner:
(a)
The fact and date of the execution by any such Person of any instrument may be proved in any reasonable manner acceptable to
the Trustee.
(b)
The ownership of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security
Registrar thereof.
The Trustee may require such additional proof
of any matter referred to in this Section as it shall deem necessary.
Section 8.03 Who
May be Deemed Owners.
Prior to the due presentment for registration
of transfer of any Security, the Company, the Trustee, any paying agent and any Security Registrar may deem and treat the Person in whose
name such Security shall be registered upon the books of the Company as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notice of ownership or writing thereon made by anyone other than the Security Registrar) for
the purpose of receiving payment of or on account of the principal of, premium, if any, and (subject to Section 2.03) interest on such
Security and for all other purposes; and neither the Company nor the Trustee nor any paying agent nor any Security Registrar shall be
affected by any notice to the contrary.
Section 8.04 Certain
Securities Owned by Company Disregarded.
In determining whether the holders of the requisite
aggregate principal amount of Securities of a particular series have concurred in any direction, consent or waiver under this Indenture,
the Securities of that series that are owned by the Company or any other obligor on the Securities of that series or by any Person directly
or indirectly controlling or controlled by or under common control with the Company or any other obligor on the Securities of that series
shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that for the purpose of determining
whether the Trustee shall be protected in relying on any such direction, consent or waiver, only Securities of such series that the Trustee
actually knows are so owned shall be so disregarded. The Securities so owned that have been pledged in good faith may be regarded as Outstanding
for the purposes of this Section, if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right so to act
with respect to such Securities and that the pledgee is not a Person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Company or any such other obligor. In case of a dispute as to such right, any decision by the Trustee
taken upon the advice of counsel shall be full protection to the Trustee.
Section 8.05 Actions
Binding on Future Securityholders.
At any time prior to (but not after) the evidencing
to the Trustee, as provided in Section 8.01, of the taking of any action by the holders of the majority or percentage in aggregate principal
amount of the Securities of a particular series specified in this Indenture in connection with such action, any holder of a Security of
that series that is shown by the evidence to be included in the Securities the holders of which have consented to such action may, by
filing written notice with the Trustee, and upon proof of holding as provided in Section 8.02, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the holder of any Security shall be conclusive and binding upon such holder and
upon all future holders and owners of such Security, and of any Security issued in exchange therefor, on registration of transfer thereof
or in place thereof, irrespective of whether or not any notation in regard thereto is made upon such Security. Any action taken by the
holders of the majority or percentage in aggregate principal amount of the Securities of a particular series specified in this Indenture
in connection with such action shall be conclusively binding upon the Company, the Trustee and the holders of all the Securities of that
series.
ARTICLE
9
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental
Indentures Without the Consent of Securityholders.
In addition to any supplemental indenture otherwise
authorized by this Indenture, the Company and the Trustee may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as then in effect), without the consent of the Securityholders,
for one or more of the following purposes:
(a)
to cure any ambiguity, defect, or inconsistency herein or in the Securities of any series;
(b)
to comply with Article Ten;
(c)
to provide for uncertificated Securities in addition to or in place of certificated Securities and to make all appropriate
changes for such purpose;
(d)
to add to the covenants, restrictions, conditions or provisions relating to the Company for the benefit of the holders of all
or any series of Securities (and if such covenants, restrictions, conditions or provisions are to be for the benefit of less than all
series of Securities, stating that such covenants, restrictions, conditions or provisions are expressly being included solely for the
benefit of such series), to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default, or to surrender any right or power herein conferred upon the Company;
(e)
to add to, delete from, or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes
of issue, authentication, and delivery of Securities, as herein set forth;
(f)
to make any change that does not adversely affect the rights of any Securityholder in any material respect;
(g)
to provide for the issuance of and establish the form and terms and conditions of the Securities of any series as provided
in Section 2.01, to establish the form of any certifications required to be furnished pursuant to the terms of this Indenture or any series
of Securities, or to add to the rights of the holders of any series of Securities;
(h)
to evidence and provide for the acceptance of appointment hereunder by a successor trustee; or
(i)
to comply with any requirements of the Securities and Exchange Commission or any successor in connection with the qualification
of this Indenture under the Trust Indenture Act.
The Trustee is hereby authorized to join with
the Company in the execution of any such supplemental indenture, and to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental indenture that affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions
of this Section may be executed by the Company and the Trustee without the consent of the holders of any of the Securities at the time
Outstanding, notwithstanding any of the provisions of Section 9.02.
Section 9.02 Supplemental
Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Section
8.01) of the holders of not less than a majority in aggregate principal amount of the Securities of each series affected by such supplemental
indenture or indentures at the time Outstanding, the Company, when authorized by a Board Resolution, and the Trustee may from time to
time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture
Act as then in effect) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner not covered by Section 9.01 the rights of the holders of the
Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the
holders of each Security then Outstanding and affected thereby, (a) extend the fixed maturity of any Securities of any series, or reduce
the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any premium payable upon
the redemption thereof, (b) make any Security payable in money other than that stated in the Security, (c) impair the right of any Holder
to receive payment of principal of, premium, if any, and interest, if any, on, such Holder’s Securities on or after the due dates
therefor or to institute suit for the enforcement of any payment, or (d) adversely change the right to convert or exchange, including
decreasing the conversion rate or increasing the conversion price of, any Security, or (e) reduce the aforesaid percentage of Securities,
the holders of which are required to consent to any such supplemental indenture.
It shall not be necessary for the consent of the
Securityholders of any series affected thereby under this Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance thereof.
Section 9.03 Effect of
Supplemental Indentures.
Upon the execution of any supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, this Indenture shall, with respect to such series, be and be deemed to
be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under
this Indenture of the Trustee, the Company and the holders of Securities of the series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any
such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
Section 9.04 Securities
Affected by Supplemental Indentures.
Securities of any series affected by a supplemental
indenture, authenticated and delivered after the execution of such supplemental indenture pursuant to the provisions of this Article or
of Section 10.01, may bear a notation in form approved by the Company, provided such form meets the requirements of any securities exchange
upon which such series may be listed, as to any matter provided for in such supplemental indenture. If the Company shall so determine,
new Securities of that series so modified as to conform, in the opinion of the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Company, authenticated by the Trustee and delivered in exchange for
the Securities of that series then Outstanding.
Section 9.05 Execution
of Supplemental Indentures.
Upon the request of the Company, accompanied by
its Board Resolutions authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture
or otherwise, in which case the Trustee may in its discretion but shall not be obligated to enter into such supplemental indenture. The
Trustee, subject to the provisions of Section 7.01, will be entitled to receive and will be fully protected in relying upon an Officers’
Certificate and an Opinion of Counsel stating that any supplemental indenture executed pursuant to this Article is authorized or permitted
by, and conforms to, the terms of this Article and that it is proper for the Trustee under the provisions of this Article to join in the
execution thereof; provided, however, that such Officers’ Certificate or Opinion of Counsel need not be provided in connection with
the execution of a supplemental indenture that establishes the terms of a series of Securities pursuant to Section 2.01 hereof.
Promptly after the execution by the Company and
the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Trustee shall transmit by mail, first class
postage prepaid, a notice, setting forth in general terms the substance of such supplemental indenture, to the Securityholders of all
series affected thereby as their names and addresses appear upon the Security Register. Any failure of the Trustee to mail such notice,
or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
ARTICLE
10
SUCCESSOR ENTITY
Section 10.01 Company
May Consolidate, Etc.
The Company shall not consolidate with or merge
into any other Person (in a transaction in which the Company is not the surviving corporation) or convey, transfer or lease its properties
and assets substantially as an entirety to any Person, unless (a) the Person formed by such consolidation or into which the Company is
merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company substantially
as an entirety shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, the due and punctual payment of the principal of and any premium and interest on all the Securities and the performance
or observance of every covenant of this Indenture on the part of the Company to be performed, by supplemental indenture satisfactory in
form to the Trustee, executed and delivered to the Trustee, by the Person (if other than the Company) formed by such consolidation or
into which the Company shall have been merged or by the Person which shall have acquired the Company’s assets; (b) immediately after
giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company or any Subsidiary as a result
of such transaction as having been incurred by the Company or such Subsidiary at the time of 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 Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease 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.
The restrictions in this Section 10.01 shall not
apply to the merger of the Company with or into a single direct or indirect wholly owned Subsidiary.
Section 10.02
Successor Entity Substituted.
(a)
In case of any such consolidation, merger, sale, conveyance, transfer or other disposition and upon the assumption by the successor
entity by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the obligations set
forth under Section 10.01 on all of the Securities of all series Outstanding, such successor entity shall succeed to and be substituted
for the Company with the same effect as if it had been named as the Company herein, and thereupon the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and the Securities.
(b)
In case of any such consolidation, merger, sale, conveyance, transfer or other disposition, such changes in phraseology and
form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate.
(c)
Nothing contained in this Article shall require any action by the Company in the case of a consolidation or merger of any Person
into the Company where the Company is the survivor of such transaction, or the acquisition by the Company, by purchase or otherwise, of
all or any part of the property of any other Person (whether or not affiliated with the Company).
Section 10.03
Evidence of Consolidation, Etc. to Trustee.
The Trustee, subject to the provisions of Section
7.01, may receive an Officers’ Certificate or an Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, conveyance, transfer or other disposition, and any such assumption, comply with the provisions of this Article.
ARTICLE
11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction
and Discharge of Indenture.
If at any time: (a) the Company shall have delivered
to the Trustee for cancellation all Securities of a series theretofore authenticated and not delivered to the Trustee for cancellation
(other than any Securities that shall have been destroyed, lost or stolen and that shall have been replaced or paid as provided in Section
2.07 and Securities for whose payment money or Governmental Obligations have theretofore been deposited in trust or segregated and held
in trust by the Company and thereupon repaid to the Company or discharged from such trust, as provided in Section 11.05); or (b) all such
Securities of a particular series not theretofore delivered to the Trustee for cancellation shall have become due and payable, or are
by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption, and the Company shall deposit or cause to be deposited with the Trustee as trust
funds the entire amount in moneys or Governmental Obligations or a combination thereof, sufficient in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay at maturity or upon
redemption all Securities of that series not theretofore delivered to the Trustee for cancellation, including principal (and premium,
if any) and interest due or to become due to such date of maturity or date fixed for redemption, as the case may be, and if the Company
shall also pay or cause to be paid all other sums payable hereunder with respect to such series by the Company then this Indenture shall
thereupon cease to be of further effect with respect to such series except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02,
4.03 and 7.10, that shall survive until the date of maturity or redemption date, as the case may be, and Sections 7.06 and 11.05, that
shall survive to such date and thereafter, and the Trustee, on demand of the Company and at the cost and expense of the Company shall
execute proper instruments acknowledging satisfaction of and discharging this Indenture with respect to such series.
Section 11.02 Discharge
of Obligations.
If at any time all such Securities of a particular
series not heretofore delivered to the Trustee for cancellation or that have not become due and payable as described in Section 11.01
shall have been paid by the Company by depositing irrevocably with the Trustee as trust funds moneys or an amount of Governmental Obligations
sufficient to pay at maturity or upon redemption all such Securities of that series not theretofore delivered to the Trustee for cancellation,
including principal (and premium, if any) and interest due or to become due to such date of maturity or date fixed for redemption, as
the case may be, and if the Company shall also pay or cause to be paid all other sums payable hereunder by the Company with respect to
such series, then after the date such moneys or Governmental Obligations, as the case may be, are deposited with the Trustee the obligations
of the Company under this Indenture with respect to such series shall cease to be of further effect except for the provisions of Sections
2.03, 2.05, 2.07, 4,01, 4.02, 4,03, 7.06, 7.10 and 11.05 hereof that shall survive until such Securities shall mature and be paid.
Thereafter, Sections 7.06 and 11.05 shall survive.
Section 11.03
Deposited Moneys to be Held in Trust.
All moneys or Governmental Obligations deposited
with the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be available for payment as due, either directly
or through any paying agent (including the Company acting as its own paying agent), to the holders of the particular series of Securities
for the payment or redemption of which such moneys or Governmental Obligations have been deposited with the Trustee.
Section 11.04
Payment of Moneys Held by Paying Agents.
In connection with the satisfaction and discharge
of this Indenture all moneys or Governmental Obligations then held by any paying agent under the provisions of this Indenture shall, upon
demand of the Company, be paid to the Trustee and thereupon such paying agent shall be released from all further liability with respect
to such moneys or Governmental Obligations.
Section 11.05
Repayment to Company.
Any moneys or Governmental Obligations deposited
with any paying agent or the Trustee, or then held by the Company, in trust for payment of principal of or premium, if any, or interest
on the Securities of a particular series that are not applied but remain unclaimed by the holders of such Securities for at least two
years after the date upon which the principal of (and premium, if any) or interest on such Securities shall have respectively become due
and payable, or such other shorter period set forth in applicable escheat or abandoned or unclaimed property law, shall be repaid to the
Company on May 31 of each year or upon the Company’s request or (if then held by the Company) shall be discharged from such trust;
and thereupon the paying agent and the Trustee shall be released from all further liability with respect to such moneys or Governmental
Obligations, and the holder of any of the Securities entitled to receive such payment shall thereafter, as a general creditor, look only
to the Company for the payment thereof.
ARTICLE
12
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 12.01 No Recourse.
No recourse under or upon any obligation, covenant
or agreement of this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof, shall be had against
any incorporator, stockholder, officer or director, past, present or future as such, of the Company or of any predecessor or successor
corporation, either directly or through the Company or any such predecessor or successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Indenture
and the obligations issued hereunder are solely corporate obligations, and that no such personal liability whatever shall attach to, or
is or shall be incurred by, the incorporators, stockholders, officers or directors as such, of the Company or of any predecessor or successor
corporation, or any of them, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by constitution or statute, of, and any and all such rights and
claims against, every such incorporator, stockholder, officer or director as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture
and the issuance of such Securities.
ARTICLE
13
MISCELLANEOUS PROVISIONS
Section 13.01 Effect
on Successors and Assigns.
All the covenants, stipulations, promises and
agreements in this Indenture made by or on behalf of the Company shall bind its successors and assigns, whether so expressed or not.
Section 13.02
Actions by Successor.
Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any board, committee or officer of the Company shall and may be done and performed
with like force and effect by the corresponding board, committee or officer of any corporation that shall at the time be the lawful successor
of the Company.
Section 13.03
Surrender of Company Powers.
The Company by instrument in writing executed
by authority of its Board of Directors and delivered to the Trustee may surrender any of the powers reserved to the Company, and thereupon
such power so surrendered shall terminate both as to the Company and as to any successor corporation.
Section 13.04 Notices.
Except as otherwise expressly provided
herein, any notice, request or demand that by any provision of this Indenture is required or permitted to be given, made or served
by the Trustee or by the holders of Securities or by any other Person pursuant to this Indenture to or on the Company may be given
or served by being deposited in first class mail, postage prepaid, addressed (until another address is filed in writing by the
Company with the Trustee), as follows: 8798 9th Street Rancho Cucamonga, CA 91730, with a copy to Michelman & Robinson, LLP, 605
Third Avenue, 30th Floor, New York, New York 10158, Attention: Megan
Penick, Esq. Any notice, election, request or demand by the Company or any Securityholder or by any other Person pursuant to this
Indenture to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made in
writing at the Corporate Trust Office of the Trustee.
Section 13.05
Governing Law.
This Indenture and each Security shall be deemed
to be a contract made under the internal laws of the State of New York, and for all purposes shall be construed in accordance with the
laws of said State, except to the extent that the Trust Indenture Act is applicable.
Section 13.06
Treatment of Securities as Debt.
It is intended that the Securities will be treated
as indebtedness and not as equity for federal income tax purposes. The provisions of this Indenture shall be interpreted to further this
intention.
Section 13.07
Certificates and Opinions as to Conditions Precedent.
(a)
Upon any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture,
the Company shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent provided for in this Indenture
(other than the certificate to be delivered pursuant to Section 13.13) relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in the
case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.
(b)
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition
or covenant in this Indenture shall include (i) a statement that the Person making such certificate or opinion has read such covenant
or condition; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (iii) a statement that, in the opinion of such Person, he has made such examination
or investigation as is reasonably necessary to enable him to express an informed opinion as to whether or not such covenant or condition
has been complied with; and (iv) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been
complied with.
Section 13.08 Payments
on Business Days.
Except as provided pursuant to Section 2.01 pursuant
to a Board Resolution, and set forth in an Officers’ Certificate, or established in one or more indentures supplemental to this
Indenture, in any case where the date of maturity of interest or principal of any Security or the date of redemption of any Security shall
not be a Business Day, then payment of interest or principal (and premium, if any) may be made on the next succeeding Business Day with
the same force and effect as if made on the nominal date of maturity or redemption, and no interest shall accrue for the period after
such nominal date.
Section 13.09
Conflict with Trust Indenture Act.
If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.
Section 13.10
Indenture and Securities Solely Corporate Obligations.
No recourse for the payment of the principal of,
premium, if any, or interest on any Securities, or for any claim based thereon or otherwise in respect thereof, and no recourse under
or upon any obligation, covenant or agreement of the Company in this Indenture or in any supplemental indenture or in any Security, or
because of the creation of any indebtedness represented thereby, shall be had against any incorporator, shareholder, employee, agent,
officer, director or subsidiary, as such, past, present or future, of the Company or of any successor entity, either directly or through
the Company or any successor entity, whether by virtue of any constitution, statute, or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition
of, and as a consideration for, the execution of this Indenture and the issuance of the Securities.
Section 13.11
Counterparts.
This Indenture may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
Section 13.12
Separability.
In case any one or more of the provisions contained
in this Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of such Securities, but this
Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein
or therein.
Section 13.13 Compliance
Certificates.
The Company shall deliver to the Trustee, within
120 days after the end of each fiscal year during which any Securities of any series were outstanding, a compliance certificate stating
whether or not the signer knows of any Default or Event of Default that occurred during such fiscal year. Such certificate shall contain
a certification from the principal executive officer, principal financial officer or principal accounting officer of the Company that
a review has been conducted of the activities of the Company and the Company’s performance under this Indenture and that the Company
has complied with all conditions and covenants under this Indenture. For purposes of this Section 13.13, such compliance shall be determined
without regard to any period of grace or requirement of notice provided under this Indenture. If the officer of the Company signing such
certificate has knowledge of such a Default or Event of Default, the certificate shall describe any such Default or Event of Default and
its status.
IN WITNESS WHEREOF, the parties hereto
have caused this Indenture to be duly executed all as of the day and year first above written.
IPOWER INC. |
By: |
|
Name: |
|
Title: |
|
|
[TRUSTEE], as Trustee |
By: |
|
Name: |
|
Title: |
|
CROSS-REFERENCE TABLE (1)
Section of Trust Indenture Act of 1939, as Amended |
Section of Indenture |
310(a) |
7.09 |
310(b) |
7.08 |
|
7.10 |
310(c) |
Inapplicable |
311(a) |
7.13 |
311(b) |
7.13 |
|
|
311(c) |
Inapplicable |
312(a) |
5.01 |
|
5.02(a) |
312(b) |
5.02(c) |
312(c) |
5.02(c) |
313(a) |
5.04(a) |
313(b) |
5.04(b) |
313(c) |
5.04(a) |
|
5.04(b) |
313(d) |
5.04(c) |
314(a) |
5.03 |
|
13.12 |
314(b) |
Inapplicable |
314(c) |
13.07(a) |
314(d) |
Inapplicable |
Section of Trust Indenture Act of 1939, as Amended |
Section of Indenture |
314(e) |
13.07(b) |
314(f) |
Inapplicable |
315(a) |
7.01(a) |
|
7.01(b) |
315(b) |
7.14 |
315(c) |
7.01 |
315(d) |
7.01(b) |
|
|
315(e) |
6.07 |
316(a) |
6.06 |
|
8.04 |
316(b) |
6.04 |
316(c) |
8.01 |
317(a) |
6.02 |
317(b) |
4.03 |
318(a) |
13.09 |
(1) |
This Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions. |
Exhibit 4.6
IPOWER INC.
Company
AND
[TRUSTEE]
Trustee
INDENTURE
Dated as of [·], 20[·]
Subordinated Debt Securities
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS |
1 |
Section 1.01 Definitions of Terms. |
1 |
|
|
ARTICLE 2 ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
5 |
Section 2.01 Designation and Terms of Securities. |
5 |
Section 2.02 Form of Securities and Trustee’s Certificate. |
7 |
Section 2.03 Denominations: Provisions for Payment. |
8 |
Section 2.04 Execution and Authentication. |
9 |
Section 2.05 Registration of Transfer and Exchange. |
9 |
Section 2.06 Temporary Securities. |
10 |
Section 2.07 Mutilated, Destroyed, Lost or Stolen Securities. |
11 |
Section 2.08 Cancellation. |
11 |
Section 2.09 Benefits of Indenture. |
12 |
Section 2.10 Authenticating Agent. |
12 |
Section 2.11 Global Securities. |
12 |
|
|
ARTICLE 3 REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS |
13 |
Section 3.01 Redemption. |
13 |
Section 3.02 Notice of Redemption. |
13 |
Section 3.03 Payment Upon Redemption. |
15 |
Section 3.04 Sinking Fund. |
15 |
Section 3.05 Satisfaction of Sinking Fund Payments with Securities. |
15 |
Section 3.06 Redemption of Securities for Sinking Fund. |
16 |
|
|
ARTICLE 4 COVENANTS |
16 |
Section 4.01 Payment of Principal, Premium and Interest. |
16 |
Section 4.02 Maintenance of Office or Agency. |
16 |
Section 4.03 Paying Agents. |
16 |
Section 4.04 Appointment to Fill Vacancy in Office of Trustee. |
17 |
Section 4.05 Compliance with Consolidation Provisions. |
17 |
|
|
ARTICLE 5 SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
18 |
Section 5.01 Company to Furnish Trustee Names and Addresses of Securityholders. |
18 |
Section 5.02 Preservation Of Information; Communications With Securityholders. |
18 |
Section 5.03 Reports by the Company. |
18 |
Section 5.04 Reports by the Trustee. |
19 |
ARTICLE 6 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
19 |
Section 6.01 Events of Default. |
19 |
Section 6.02 Collection of Indebtedness and Suits for Enforcement by Trustee. |
21 |
Section 6.03 Application of Moneys or Property Collected. |
22 |
Section 6.04 Limitation on Suits. |
22 |
Section 6.05 Rights and Remedies Cumulative; Delay or Omission Not Waiver. |
23 |
Section 6.06 Control by Securityholders. |
23 |
Section 6.07 Undertaking to Pay Costs. |
24 |
|
|
ARTICLE 7 CONCERNING THE TRUSTEE |
24 |
Section 7.01 Certain Duties and Responsibilities of Trustee. |
24 |
Section 7.02 Certain Rights of Trustee. |
25 |
Section 7.03 Trustee Not Responsible for Recitals or Issuance or Securities. |
26 |
Section 7.04 May Hold Securities. |
27 |
Section 7.05 Moneys Held in Trust. |
27 |
Section 7.06 Compensation and Reimbursement. |
27 |
Section 7.07 Reliance on Officers’ Certificate. |
28 |
Section 7.08 Disqualification; Conflicting Interests. |
28 |
Section 7.09 Corporate Trustee Required; Eligibility. |
28 |
Section 7.10 Resignation and Removal; Appointment of Successor. |
28 |
Section 7.11 Acceptance of Appointment By Successor. |
29 |
Section 7.12 Merger, Conversion, Consolidation or Succession to Business. |
31 |
Section 7.13 Preferential Collection of Claims Against the Company. |
31 |
Section 7.14 Notice of Default |
31 |
|
|
ARTICLE 8 CONCERNING THE SECURITYHOLDERS |
31 |
Section 8.01 Evidence of Action by Securityholders. |
31 |
Section 8.02 Proof of Execution by Securityholders. |
32 |
Section 8.03 Who May be Deemed Owners. |
32 |
Section 8.04 Certain Securities Owned by Company Disregarded. |
32 |
Section 8.05 Actions Binding on Future Securityholders. |
33 |
|
|
ARTICLE 9 SUPPLEMENTAL INDENTURES |
33 |
Section 9.01 Supplemental Indentures Without the Consent of Securityholders. |
33 |
Section 9.02 Supplemental Indentures With Consent of Securityholders. |
33 |
Section 9.03 Effect of Supplemental Indentures. |
35 |
Section 9.04 Securities Affected by Supplemental Indentures. |
35 |
Section 9.05 Execution of Supplemental Indentures. |
35 |
ARTICLE 10 SUCCESSOR ENTITY |
36 |
Section 10.01 Company May Consolidate, Etc. |
36 |
Section 10.02 Successor Entity Substituted. |
36 |
Section 10.03 Evidence of Consolidation, Etc. to Trustee. |
37 |
|
|
ARTICLE 11 SATISFACTION AND DISCHARGE |
37 |
Section 11.01 Satisfaction and Discharge of Indenture. |
37 |
Section 11.02 Discharge of Obligations. |
37 |
Section 11.03 Deposited Moneys to be Held in Trust. |
38 |
Section 11.04 Payment of Moneys Held by Paying Agents. |
38 |
Section 11.05 Repayment to Company. |
38 |
|
|
ARTICLE 12 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
38 |
Section 12.01 No Recourse. |
38 |
|
|
ARTICLE 13 MISCELLANEOUS PROVISIONS |
39 |
Section 13.01 Effect on Successors and Assigns. |
39 |
Section 13.02 Actions by Successor. |
39 |
Section 13.03 Surrender of Company Powers. |
39 |
Section 13.04 Notices. |
39 |
Section 13.05 Governing Law. |
39 |
Section 13.06 Treatment of Securities as Debt. |
39 |
Section 13.07 Certificates and Opinions as to Conditions Precedent. |
40 |
Section 13.08 Payments on Business Days. |
40 |
Section 13.09 Conflict with Trust Indenture Act. |
40 |
Section 13.10 Indenture and Securities Solely Corporate Obligations. |
40 |
Section 13.11 Counterparts. |
41 |
Section 13.12 Separability. |
41 |
Section 13.13 Compliance Certificates. |
41 |
|
|
ARTICLE 14 SUBORDINATION OF SECURITIES |
41 |
Section 14.01 Subordination Terms. |
41 |
(1) |
This Table of Contents does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions. |
INDENTURE
INDENTURE, dated as of [·], 20[·],
among IPOWER INC., a Nevada corporation (the “Company”), and [TRUSTEE], as trustee (the “Trustee”).
WHEREAS, for its lawful corporate purposes,
the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of subordinated debt securities
(hereinafter referred to as the “Securities”), in an unlimited aggregate principal amount to be issued from time to time in
one or more series as in this Indenture provided, as registered Securities without coupons, to be authenticated by the certificate of
the Trustee;
WHEREAS, to provide the terms and conditions
upon which the Securities are to be authenticated, issued and delivered, the Company has duly authorized the execution of this Indenture;
and
WHEREAS, all things necessary to make this
Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the
premises and the purchase of the Securities by the holders thereof, it is mutually covenanted and agreed as follows for the equal and
ratable benefit of the holders of Securities:
ARTICLE
1
DEFINITIONS
Section 1.01 Definitions
of Terms.
The terms defined in this Section (except as in
this Indenture or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires) for all purposes
of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section and shall include
the plural as well as the singular. All other terms used in this Indenture that are defined in the Trust Indenture Act of 1939, as amended,
or that are by reference in such Act defined in the Securities Act of 1933, as amended (except as herein or any indenture supplemental
hereto otherwise expressly provided or unless the context otherwise requires), shall have the meanings assigned to such terms in said
Trust Indenture Act and in said Securities Act as in force at the date of the execution of this instrument.
“Authenticating Agent”
means an authenticating agent with respect to all or any of the series of Securities appointed by the Trustee pursuant to Section 2.10.
“Bankruptcy Law” means
Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
“Board of Directors”
means the Board of Directors of the Company or any duly authorized committee of such Board.
“Board Resolution” means
a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such certification.
“Business Day” means,
with respect to any series of Securities, any day other than a day on which federal or state banking institutions in the Borough of Manhattan,
the City of New York, or in the city of the Corporate Trust Office of the Trustee, are authorized or obligated by law, executive order
or regulation to close.
“Certificate” means
a certificate signed by any Officer. The Certificate need not comply with the provisions of Section 13.07.
“Company” means iPower
Inc., a corporation duly organized and existing under the laws of the State of Nevada, and, subject to the provisions of Article Ten,
shall also include its successors and assigns.
“Corporate Trust Office”
means the office of the Trustee at which, at any particular time, its corporate trust business shall be principally administered, which
office at the date hereof is located at.
“Currency Agreement”
means any foreign exchange contract, currency swap agreement or other similar agreement with respect to currency values.
“Custodian” means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Default” means any
event, act or condition that with notice or lapse of time, or both, would constitute an Event of Default.
“Depositary” means,
with respect to Securities of any series for which the Company shall determine that such Securities will be issued as a Global Security,
The Depository Trust Company, New York, New York, another clearing agency, or any successor registered as a clearing agency under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other applicable statute or regulation, which, in each
case, shall be designated by the Company pursuant to either Section 2.01 or 2.11.
“Event of Default” means,
with respect to Securities of a particular series, any event specified in Section 6.01, continued for the period of time, if any, therein
designated.
“Global Security” means,
with respect to any series of Securities, a Security executed by the Company and delivered by the Trustee to the Depositary or pursuant
to the Depositary’s instruction, all in accordance with the Indenture, which shall be registered in the name of the Depositary or
its nominee.
“Governmental Obligations”
means securities that are (a) direct obligations of the United States of America for the payment of which its full faith and credit is
pledged or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America that,
in either case, are not callable or redeemable at the option of the Company thereof at any time prior to the stated maturity of the Securities,
and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to any such Governmental Obligation
or a specific payment of principal of or interest on any such Governmental Obligation held by such custodian for the account of the holder
of such depositary receipt; provided, however, that (except as required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the Governmental
Obligation or the specific payment of principal of or interest on the Governmental Obligation evidenced by such depositary receipt.
“herein”, “hereof”
and “hereunder”, and other words of similar import, refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
“Indenture” means this
instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto
entered into in accordance with the terms hereof.
“Interest Payment Date”,
when used with respect to any installment of interest on a Security of a particular series, means the date specified in such Security
or in a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date on which an installment
of interest with respect to Securities of that series is due and payable.
“Interest Rate Agreement”
means any interest rate swap agreement, interest rate cap agreement or other financial agreement or arrangement with respect to exposure
to interest rates.
“Officer” means, with
respect to the Company, the chairman of the Board of Directors, a chief executive officer, a president, a chief financial officer, chief
operating officer, any executive vice president, any senior vice president, any vice president, the treasurer or any assistant treasurer,
the controller or any assistant controller or the secretary or any assistant secretary.
“Officers’ Certificate”
means a certificate signed by any two Officers. Each such certificate shall include the statements provided for in Section 13.07, if and
to the extent required by the provisions thereof.
“Opinion of Counsel”
means an opinion in writing subject to customary exceptions of legal counsel, who may be an employee of or counsel for the Company, that
is delivered to the Trustee in accordance with the terms hereof. Each such opinion shall include the statements provided for in Section
13.07, if and to the extent required by the provisions thereof.
“Outstanding”, when
used with reference to Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time, all Securities
of that series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore canceled
by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that have previously been canceled;
(b) Securities or portions thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary amount shall
have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside and segregated
in trust by the Company (if the Company shall act as its own paying agent); provided, however, that if such Securities or portions of
such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as in Article Three
provided, or provision satisfactory to the Trustee shall have been made for giving such notice; and (c) Securities in lieu of or in substitution
for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.07.
“Person” means any individual,
corporation, partnership, joint venture, joint-stock company, limited liability company, association, trust, unincorporated organization,
any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Predecessor Security”
of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.07 in lieu of a lost, destroyed
or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“Responsible Officer”
when used with respect to the Trustee means the chairman of its board of directors, the chief executive officer, the president, any vice
president, the secretary, the treasurer, any trust officer, any corporate trust officer or any other officer or assistant 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.
“Securities” means the
debt Securities authenticated and delivered under this Indenture.
“Securityholder”, “holder
of Securities”, “registered holder”, or other similar term, means the Person or Persons in whose name or names a particular
Security shall be registered on the books of the Company kept for that purpose in accordance with the terms of this Indenture.
“Security Register”
and “Security Registrar” shall have the meanings as set forth in Section 2.05.
“Senior Indebtedness”
of a Person means the principal of, premium, if any, interest on, and any other payment due pursuant to any of the following, whether
outstanding at the date hereof or hereafter incurred or created:
(a)
all of the principal of (and premium, if any) and interest due on indebtedness of that Person for money borrowed;
(b)
all of the indebtedness of that Person evidenced by notes, debentures, bonds or other securities sold by that Person for money;
(c)
all of the lease obligations which are capitalized on the books of that Person in accordance with generally accepted accounting
principles;
(d)
all obligations of such Person for the reimbursement of any obligor on any letter of credit, banker’s acceptance or similar
credit transaction (other than obligations with respect to letters of credit securing obligations (other than obligations described in
(a) through (c) above) entered into in the ordinary course of business of such Person to the extent such letters of credit are not drawn
upon or, if and to the extent drawn upon, such drawing is reimbursed no later than the third Business Day following receipt by such Person
of a demand for reimbursement following payment on the letter of credit);
(e)
the amount of all obligations of such Person with respect to Interest Rate Agreements or Currency Agreements;
(f)
all obligations of the type referred to in clauses (a) through (e) above of other Persons and all dividends of other Persons
for the payment of which, in either case, such Person is responsible or liable, directly or indirectly, as obligor, guarantor or otherwise,
including by means of any guarantee;
(g)
all obligations of the type referred to in clauses (a) through (f) above of other Persons secured by any Lien on any Property
of such Person (whether or not such obligation is assumed by such Person);
(h)
all renewals, extensions or refundings of indebtedness of the kinds described in any of the preceding clauses (a), (b), (d),
(e), (f) and (g) and all renewals or extensions of leases of the kinds described in the preceding clause (c) above;
unless, in the case of any particular indebtedness,
lease, renewal, extension or refunding, the instrument or lease creating or evidencing it or the assumption or guarantee relating to it
expressly provides that such indebtedness, lease, renewal, extension or refunding is not superior in right of payment to the Securities,
and provided however that Senior Indebtedness shall not include indebtedness in respect of Securities or indebtedness of any Subsidiary.
“Subsidiary” means,
with respect to any Person, (i) any corporation at least a majority of whose outstanding Voting Stock shall at the time be owned, directly
or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, (ii) any general
partnership, joint venture or similar entity, at least a majority of whose outstanding partnership or similar interests shall at the time
be owned by such Person, or by one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries and (iii) any limited
partnership of which such Person or any of its Subsidiaries is a general partner.
“Trustee” means, and,
subject to the provisions of Article Seven, shall also include its successors and assigns, and, if at any time there is more than one
Person acting in such capacity hereunder, “Trustee” shall mean each such Person. The term “Trustee” as used with
respect to a particular series of the Securities shall mean the trustee with respect to that series.
“Trust Indenture Act”
means the Trust Indenture Act of 1939, as amended.
“Voting Stock”, as applied
to stock of any Person, means shares, interests, participations or other equivalents in the equity interest (however designated) in such
Person having ordinary voting power for the election of a majority of the directors (or the equivalent) of such Person, other than shares,
interests, participations or other equivalents having such power only by reason of the occurrence of a contingency.
ARTICLE
2
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES
Section 2.01 Designation
and Terms of Securities.
(a)
The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The
Securities may be issued in one or more series up to the aggregate principal amount of Securities of that series from time to time authorized
by or pursuant to a Board Resolution or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities
of any series, there shall be established in or pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or established
in one or more indentures supplemental hereto:
(1)
the title of the Securities of the series (which shall distinguish the Securities of that series from all other Securities);
(2)
any limit upon the aggregate principal amount of the Securities of that series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities of that series);
(3)
the date or dates on which the principal of the Securities of the series is payable, any original issue discount that may apply
to the Securities of that series upon their issuance, the principal amount due at maturity, and the place(s) of payment;
(4)
the rate or rates at which the Securities of the series shall bear interest or the manner of calculation of such rate or rates,
if any;
(5)
the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest will be payable
or the manner of determination of such Interest Payment Dates, the place(s) of payment, and the record date for the determination of holders
to whom interest is payable on any such Interest Payment Dates or the manner of determination of such record dates;
(6)
the right, if any, to extend the interest payment periods and the duration of such extension, including the maximum consecutive
periods during which interest payments may be extended;
(7)
the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the Company;
(8)
the obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund, mandatory
redemption, or analogous provisions (including payments made in cash in satisfaction of future sinking fund obligations) or at the option
of a holder thereof and the period or periods within which, the price or prices at which, and the terms and conditions upon which, Securities
of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(9)
the form of the Securities of the series including the form of the Certificate of Authentication for such series;
(10)
if other than denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, the denominations in which
the Securities of the series shall be issuable;
(11)
any and all other terms (including terms, to the extent applicable, relating to any auction or remarketing of the Securities
of that series and any security for the obligations of the Company with respect to such Securities) with respect to such series (which
terms shall not be inconsistent with the terms of this Indenture, as amended by any supplemental indenture) including any terms which
may be required by or advisable under United States laws or regulations or advisable in connection with the marketing of Securities of
that series;
(12)
whether the Securities are issuable as a Global Security and, in such case, the terms and the identity of the Depositary for
such series;
(13)
whether the Securities will be convertible into or exchangeable for shares of common stock or other securities of the Company
or any other Person and, if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, including
the conversion or exchange price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional (at the Company’s
option or the holders’ option) conversion or exchange features, and the applicable conversion or exchange period;
(14)
if other than the principal amount thereof, the portion, or methods of determining the portion, of the principal amount of
Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01;
(15)
any additional or different Events of Default or restrictive covenants (which may include, among other restrictions, restrictions
on the Company’s ability or the ability of the Company’s Subsidiaries to: incur additional indebtedness; issue additional
securities; create liens; pay dividends or make distributions in respect of their capital stock; redeem capital stock; place restrictions
on such Subsidiaries placing restrictions on their ability to pay dividends, make distributions or transfer assets; make investments or
other restricted payments; sell or otherwise dispose of assets; enter into sale-leaseback transactions; engage in transactions with stockholders
and affiliates; issue or sell stock of their Subsidiaries; or effect a consolidation or merger) or financial covenants (which may include,
among other financial covenants, financial covenants that require the Company and its Subsidiaries to maintain specified interest coverage,
fixed charge, cash flow-based or asset-based ratios) provided for with respect to the Securities of the series;
(16)
if other than dollars, the coin or currency in which the Securities of the series are denominated (including, but not limited
to, foreign currency);
(17)
the terms and conditions, if any, upon which the Company shall pay amounts in addition to the stated interest, premium, if
any and principal amounts of the Securities of the series to any Securityholder that is not a “United States person” for federal
tax purposes;
(18)
any restrictions on transfer, sale or assignment of the Securities of the series; and
(19)
the subordination terms of the Securities of the series.
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in or pursuant to any such Board Resolution or in any indentures
supplemental hereto.
If any of the terms of the series are established
by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of such action shall be certified by the
secretary or an assistant secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers’ Certificate
of the Company setting forth the terms of the series.
Securities of any particular series may be issued
at various times, with different dates on which the principal or any installment of principal is payable, with different rates of interest,
if any, or different methods by which rates of interest may be determined, with different dates on which such interest may be payable
and with different redemption dates.
Section 2.02 Form
of Securities and Trustee’s Certificate.
The Securities of any series and the Trustee’s
certificate of authentication to be borne by such Securities shall be substantially of the tenor and purport as set forth in one or more
indentures supplemental hereto or as provided in a Board Resolution, and set forth in an Officers’ Certificate, and they may have
such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved
thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange on
which Securities of that series may be listed, or to conform to usage.
Section 2.03 Denominations:
Provisions for Payment.
The Securities shall be issuable as registered
Securities and in the denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, subject to Section 2.01(a)(10).
The Securities of a particular series shall bear interest payable on the dates and at the rate specified with respect to that series.
Subject to Section 2.01(a)(16), the principal of and the interest on the Securities of any series, as well as any premium thereon in case
of redemption thereof prior to maturity, shall be payable in the coin or currency of the United States of America that at the time is
legal tender for public and private debt, at the office or agency of the Company maintained for that purpose in the State of California.
Each Security shall be dated the date of its authentication. Interest on the Securities shall be computed on the basis of a 360-day year
composed of twelve 30-day months.
The interest installment on any Security that
is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities of that series shall be paid to the
Person in whose name said Security (or one or more Predecessor Securities) is registered at the close of business on the regular record
date for such interest installment. In the event that any Security of a particular series or portion thereof is called for redemption
and the redemption date is subsequent to a regular record date with respect to any Interest Payment Date and prior to such Interest Payment
Date, interest on such Security will be paid upon presentation and surrender of such Security as provided in Section 3.03.
Any interest on any Security that is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date for Securities of the same series (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the registered holder on the relevant regular record date by virtue of having
been such holder; and such Defaulted Interest shall be paid by the Company, at its election, as provided in clause (1) or clause (2) below:
(1)
The Company may make payment of any Defaulted Interest on Securities to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered at the close of business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: the Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Security and the date of the proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a special
record date for the payment of such Defaulted Interest which shall not be more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such special record date and, in the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the special record date therefor to be mailed, first class postage prepaid, to each Securityholder
at his or her address as it appears in the Security Register (as hereinafter defined), not less than 10 days prior to such special record
date. Notice of the proposed payment of such Defaulted Interest and the special record date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered
on such special record date.
(2)
The Company may make payment of any Defaulted Interest on any Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution
or one or more indentures supplemental hereto establishing the terms of any series of Securities pursuant to Section 2.01 hereof, the
term “regular record date” as used in this Section with respect to a series of Securities and any Interest Payment Date for
such series shall mean either the fifteenth day of the month immediately preceding the month in which an Interest Payment Date established
for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is the first day of a month, or the first day
of the month in which an Interest Payment Date established for such series pursuant to Section 2.01 hereof shall occur, if such Interest
Payment Date is the fifteenth day of a month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this Section,
each Security of a series delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Security of such
series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security.
Section 2.04 Execution
and Authentication.
The Securities shall be signed on behalf of the
Company by one of its Officers. Signatures may be in the form of a manual or facsimile signature.
The Company may use the facsimile signature of
any Person who shall have been an Officer, notwithstanding the fact that at the time the Securities shall be authenticated and delivered
or disposed of such Person shall have ceased to be such an officer of the Company. The Securities may contain such notations, legends
or endorsements required by law, stock exchange rule or usage. Each Security shall be dated the date of its authentication by the Trustee.
A Security shall not be valid until authenticated
manually by an authorized signatory of the Trustee, or by an Authenticating Agent. Such signature shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits of this
Indenture. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of
any series executed by the Company to the Trustee for authentication, together with a written order of the Company for the authentication
and delivery of such Securities, signed by an Officer, and the Trustee in accordance with such written order shall authenticate and deliver
such Securities.
In authenticating such Securities and accepting
the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject
to Section 7.01) shall be fully protected in relying upon, an Opinion of Counsel stating that the form and terms thereof have been established
in conformity with the provisions of this Indenture.
The Trustee shall not be required to authenticate
such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee.
Section 2.05 Registration
of Transfer and Exchange.
(a)
Securities of any series may be exchanged upon presentation thereof at the office or agency of the Company designated for such
purpose in the State of California, for other Securities of such series of authorized denominations, and for a like aggregate principal
amount, upon payment of a sum sufficient to cover any tax or other governmental charge in relation thereto, all as provided in this Section.
In respect of any Securities so surrendered for exchange, the Company shall execute, the Trustee shall authenticate and such office or
agency shall deliver in exchange therefor the Security or Securities of the same series that the Securityholder making the exchange shall
be entitled to receive, bearing numbers not contemporaneously outstanding.
(b)
The Company shall keep, or cause to be kept, at its office or agency designated for such purpose in the State of California,
or such other location designated by the Company, a register or registers (herein referred to as the “Security Register”)
in which, subject to such reasonable regulations as it may prescribe, the Company shall register the Securities and the transfers of Securities
as in this Article provided and which at all reasonable times shall be open for inspection by the Trustee. The registrar for the purpose
of registering Securities and transfer of Securities as herein provided shall be appointed as authorized by Board Resolution (the “Security
Registrar”).
Upon surrender for transfer of any Security at
the office or agency of the Company designated for such purpose, the Company shall execute, the Trustee shall authenticate and such office
or agency shall deliver in the name of the transferee or transferees a new Security or Securities of the same series as the Security presented
for a like aggregate principal amount.
All Securities presented or surrendered for exchange
or registration of transfer, as provided in this Section, shall be accompanied (if so required by the Company or the Security Registrar)
by a written instrument or instruments of transfer, in form satisfactory to the Company or the Security Registrar, duly executed by the
registered holder or by such holder’s duly authorized attorney in writing.
(c)
Except as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an Officers’ Certificate,
or established in one or more indentures supplemental to this Indenture, no service charge shall be made for any exchange or registration
of transfer of Securities, or issue of new Securities in case of partial redemption of any series, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge in relation thereto, other than exchanges pursuant to Section 2.06,
Section 3.03(b) and Section 9.04 not involving any transfer.
(d)
The Company shall not be required (i) to issue, exchange or register the transfer of any Securities during a period beginning
at the opening of business 15 days before the day of the mailing of a notice of redemption of less than all the Outstanding Securities
of the same series and ending at the close of business on the day of such mailing, nor (ii) to register the transfer of or exchange any
Securities of any series or portions thereof called for redemption, other than the unredeemed portion of any such Securities being redeemed
in part. The provisions of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.
Section 2.06 Temporary
Securities.
Pending the preparation of definitive Securities
of any series, the Company may execute, and the Trustee shall authenticate and deliver, temporary Securities (printed, lithographed or
typewritten) of any authorized denomination. Such temporary Securities shall be substantially in the form of the definitive Securities
in lieu of which they are issued, but with such omissions, insertions and variations as may be appropriate for temporary Securities, all
as may be determined by the Company. Every temporary Security of any series shall be executed by the Company and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities of such series.
Without unnecessary delay the Company will execute and will furnish definitive Securities of such series and thereupon any or all temporary
Securities of such series may be surrendered in exchange therefor (without charge to the holders), at the office or agency of the Company
designated for the purpose in the State of California, and the Trustee shall authenticate and such office or agency shall deliver in exchange
for such temporary Securities an equal aggregate principal amount of definitive Securities of such series, unless the Company advises
the Trustee to the effect that definitive Securities need not be executed and furnished until further notice from the Company. Until so
exchanged, the temporary Securities of such series shall be entitled to the same benefits under this Indenture as definitive Securities
of such series authenticated and delivered hereunder.
Section 2.07 Mutilated,
Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security shall
become mutilated or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence) shall execute, and upon the Company’s
request the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the same series, bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Security, or in lieu of and in substitution for the Security so destroyed,
lost or stolen. In every case the applicant for a substituted Security shall furnish to the Company and the Trustee such security or indemnity
as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish
to the Company and the Trustee evidence to their satisfaction of the destruction, loss or theft of the applicant’s Security and
of the ownership thereof. The Trustee may authenticate any such substituted Security and deliver the same upon the written request or
authorization of any officer of the Company. Upon the issuance of any substituted Security, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith.
In case any Security that has matured or is about
to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Security, pay or authorize
the payment of the same (without surrender thereof except in the case of a mutilated Security) if the applicant for such payment shall
furnish to the Company and the Trustee such security or indemnity as they may require to save them harmless, and, in case of destruction,
loss or theft, evidence to the satisfaction of the Company and the Trustee of the destruction, loss or theft of such Security and of the
ownership thereof.
Every replacement Security issued pursuant to
the provisions of this Section shall constitute an additional contractual obligation of the Company whether or not the mutilated, destroyed,
lost or stolen Security shall be found at any time, or be enforceable by anyone, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities of the same series duly issued hereunder. All Securities shall be held and
owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities, and shall preclude (to the extent lawful) any and all other rights or remedies, notwithstanding
any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments
or other securities without their surrender.
Section 2.08 Cancellation.
All Securities surrendered for the purpose of
payment, redemption, exchange or registration of transfer shall, if surrendered to the Company or any paying agent, be delivered to the
Trustee for cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and no Securities shall be issued in lieu thereof
except as expressly required or permitted by any of the provisions of this Indenture. In the absence of such request the Trustee may dispose
of canceled Securities in accordance with its standard procedures and deliver a certificate of disposition to the Company. If the Company
shall otherwise acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are delivered to the Trustee for cancellation.
Section 2.09 Benefits
of Indenture.
Nothing in this Indenture or in the Securities,
express or implied, shall give or be construed to give to any Person, other than the parties hereto and the holders of the Securities
(and, with respect to the provisions of Article Fourteen, the holders of any indebtedness of the Company to which the Securities of any
series are subordinated) any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant, condition
or provision herein contained; all such covenants, conditions and provisions being for the sole benefit of the parties hereto and of the
holders of the Securities (and, with respect to the provisions of Article Fourteen, the holders of any indebtedness of the Company to
which the Securities of any series are subordinated).
Section 2.10 Authenticating
Agent.
So long as any of the Securities of any series
remain Outstanding there may be an Authenticating Agent for any or all such series of Securities which the Trustee shall have the right
to appoint. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued
upon exchange, transfer or partial redemption thereof, and Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. All references in this Indenture to the
authentication of Securities by the Trustee shall be deemed to include authentication by an Authenticating Agent for such series. Each
Authenticating Agent shall be acceptable to the Company and shall be a corporation that has a combined capital and surplus, as most recently
reported or determined by it, sufficient under the laws of any jurisdiction under which it is organized or in which it is doing business
to conduct a trust business, and that is otherwise authorized under such laws to conduct such business and is subject to supervision or
examination by federal or state authorities. If at any time any Authenticating Agent shall cease to be eligible in accordance with these
provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign
by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time (and upon request by the Company
shall) terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the
Company. Upon resignation, termination or cessation of eligibility of any Authenticating Agent, the Trustee may appoint an eligible successor
Authenticating Agent acceptable to the Company. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall
become vested with all the rights, powers and duties of its predecessor hereunder as if originally named as an Authenticating Agent pursuant
hereto.
Section 2.11 Global
Securities.
(a)
If the Company shall establish pursuant to Section 2.01 that the Securities of a particular series are to be issued as a Global
Security, then the Company shall execute and the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security
that (i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, all of the Outstanding Securities
of such series, (ii) shall be registered in the name of the Depositary or its nominee, (iii) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary’s instruction and (iv) shall bear a legend substantially to the following effect: “Except
as otherwise provided in Section 2.11 of the Indenture, this Security may be transferred, in whole but not in part, only to another nominee
of the Depositary or to a successor Depositary or to a nominee of such successor Depositary.”
(b)
Notwithstanding the provisions of Section 2.05, the Global Security of a series may be transferred, in whole but not in part
and in the manner provided in Section 2.05, only to another nominee of the Depositary for such series, or to a successor Depositary for
such series selected or approved by the Company or to a nominee of such successor Depositary.
(c)
If at any time the Depositary for a series of the Securities notifies the Company that it is unwilling or unable to continue
as Depositary for such series or if at any time the Depositary for such series shall no longer be registered or in good standing under
the Exchange Act, or other applicable statute or regulation, and a successor Depositary for such series is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such condition, as the case may be, or if an Event of Default
has occurred and is continuing and the Company has received a request from the Depositary, this Section 2.11 shall no longer be applicable
to the Securities of such series and the Company will execute, and subject to Section 2.04, the Trustee will authenticate and deliver
the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security of such series in exchange for such Global Security. In addition, the Company
may at any time determine that the Securities of any series shall no longer be represented by a Global Security and that the provisions
of this Section 2.11 shall no longer apply to the Securities of such series. In such event the Company will execute and, subject to Section
2.04, the Trustee, upon receipt of an Officers’ Certificate evidencing such determination by the Company, will authenticate and
deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security. Upon the exchange
of the Global Security for such Securities in definitive registered form without coupons, in authorized denominations, the Global Security
shall be canceled by the Trustee. Such Securities in definitive registered form issued in exchange for the Global Security pursuant to
this Section 2.11(c) shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Depositary
for delivery to the Persons in whose names such Securities are so registered.
ARTICLE
3
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
Section 3.01 Redemption.
The Company may redeem the Securities of any series
issued hereunder on and after the dates and in accordance with the terms established for such series pursuant to Section 2.01 hereof.
Section 3.02 Notice
of Redemption.
(a)
In case the Company shall desire to exercise such right to redeem all or, as the case may be, a portion of the Securities of
any series in accordance with any right the Company reserved for itself to do so pursuant to Section 2.01 hereof, the Company shall, or
shall cause the Trustee to, give notice of such redemption to holders of the Securities of such series to be redeemed by mailing, first
class postage prepaid, a notice of such redemption not less than 30 days and not more than 90 days before the date fixed for redemption
of that series to such holders at their last addresses as they shall appear upon the Security Register, unless a shorter period is specified
in the Securities to be redeemed. Any notice that is mailed in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the registered holder receives the notice. In any case, failure duly to give such notice to the holder of any
Security of any series designated for redemption in whole or in part, or any defect in the notice, shall not affect the validity of the
proceedings for the redemption of any other Securities of such series or any other series. In the case of any redemption of Securities
prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture,
the Company shall furnish the Trustee with an Officers’ Certificate evidencing compliance with any such restriction.
Each such notice of redemption shall specify the
date fixed for redemption and the redemption price at which Securities of that series are to be redeemed, and shall state that payment
of the redemption price of such Securities to be redeemed will be made at the office or agency of the Company in the State of California,
upon presentation and surrender of such Securities, that interest accrued to the date fixed for redemption will be paid as specified in
said notice, that from and after said date interest will cease to accrue and that the redemption is for a sinking fund, if such is the
case. If less than all the Securities of a series are to be redeemed, the notice to the holders of Securities of that series to be redeemed
in part shall specify the particular Securities to be so redeemed.
In case any Security is to be redeemed in part
only, the notice that relates to such Security shall state the portion of the principal amount thereof to be redeemed, and shall state
that on and after the redemption date, upon surrender of such Security, a new Security or Securities of such series in principal amount
equal to the unredeemed portion thereof will be issued.
(b)
If less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 45 days’
notice (unless a shorter notice shall be satisfactory to the Trustee) in advance of the date fixed for redemption as to the aggregate
principal amount of Securities of the series to be redeemed, and thereupon the Trustee shall select, by lot or in such other manner as
it shall deem appropriate and fair in its discretion and that may provide for the selection of a portion or portions (equal to one thousand
U.S. dollars ($1,000) or any integral multiple thereof) of the principal amount of such Securities of a denomination larger than $1,000,
the Securities to be redeemed and shall thereafter promptly notify the Company in writing of the numbers of the Securities to be redeemed,
in whole or in part. The Company may, if and whenever it shall so elect, by delivery of instructions signed on its behalf by an Officer,
instruct the Trustee or any paying agent to call all or any part of the Securities of a particular series for redemption and to give notice
of redemption in the manner set forth in this Section, such notice to be in the name of the Company or its own name as the Trustee or
such paying agent may deem advisable. In any case in which notice of redemption is to be given by the Trustee or any such paying agent,
the Company shall deliver or cause to be delivered to, or permit to remain with, the Trustee or such paying agent, as the case may be,
such Security Register, transfer books or other records, or suitable copies or extracts therefrom, sufficient to enable the Trustee or
such paying agent to give any notice by mail that may be required under the provisions of this Section.
Section 3.03 Payment
Upon Redemption.
(a)
If the giving of notice of redemption shall have been completed as above provided, the Securities or portions of Securities
of the series to be redeemed specified in such notice shall become due and payable on the date and at the place stated in such notice
at the applicable redemption price, together with interest accrued to the date fixed for redemption and interest on such Securities or
portions of Securities shall cease to accrue on and after the date fixed for redemption, unless the Company shall default in the payment
of such redemption price and accrued interest with respect to any such Security or portion thereof. On presentation and surrender of such
Securities on or after the date fixed for redemption at the place of payment specified in the notice, said Securities shall be paid and
redeemed at the applicable redemption price for such series, together with interest accrued thereon to the date fixed for redemption (but
if the date fixed for redemption is an interest payment date, the interest installment payable on such date shall be payable to the registered
holder at the close of business on the applicable record date pursuant to Section 2.03).
(b)
Upon presentation of any Security of such series that is to be redeemed in part only, the Company shall execute and the Trustee
shall authenticate and the office or agency where the Security is presented shall deliver to the holder thereof, at the expense of the
Company, a new Security of the same series of authorized denominations in principal amount equal to the unredeemed portion of the Security
so presented.
Section 3.04 Sinking
Fund.
The provisions of Sections 3.04, 3.05 and 3.06
shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise specified as contemplated by
Section 2.01 for Securities of such series.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any
payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional
sinking fund payment”. If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 3.05. Each sinking fund payment shall be applied to the redemption of Securities of any
series as provided for by the terms of Securities of such series.
Section 3.05 Satisfaction
of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities
of a series and (ii) may apply as a credit Securities of a series that have been redeemed either at the election of the Company pursuant
to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities,
in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to
be made pursuant to the terms of such Securities as provided for by the terms of such series, provided that such Securities have not been
previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the redemption price specified
in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 3.06 Redemption
of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund
payment date for any series of Securities (unless a shorter period shall be satisfactory to the Trustee), the Company will deliver to
the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to
the terms of the series, the portion thereof, if any, that is to be satisfied by delivering and crediting Securities of that series pursuant
to Section 3.05 and the basis for such credit and will, together with such Officers’ Certificate, deliver to the Trustee any Securities
to be so delivered. Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 3.02 and cause notice of the redemption thereof to be given in
the name of and at the expense of the Company in the manner provided in Section 3.02. Such notice having been duly given, the redemption
of such Securities shall be made upon the terms and in the manner stated in Section 3.03.
ARTICLE
4
COVENANTS
Section 4.01 Payment
of Principal, Premium and Interest.
The Company will duly and punctually pay or cause
to be paid the principal of (and premium, if any) and interest on the Securities of that series at the time and place and in the manner
provided herein and established with respect to such Securities.
Section 4.02 Maintenance
of Office or Agency.
So long as any series of the Securities remain
Outstanding, the Company agrees to maintain an office or agency in the State of California, with respect to each such series and at such
other location or locations as may be designated as provided in this Section 4.02, where (i) Securities of that series may be presented
for payment, (ii) Securities of that series may be presented as herein above authorized for registration of transfer and exchange, and
(iii) notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be given or served,
such designation to continue with respect to such office or agency until the Company shall, by written notice signed by any officer authorized
to sign an Officers’ Certificate and delivered to the Trustee, designate some other office or agency for such purposes or any of
them. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations, notices and demands. The Company initially appoints the Corporate
Trust Office of the Trustee located in the State of California as its paying agent with respect to the Securities.
Section 4.03 Paying
Agents.
(a)
If the Company shall appoint one or more paying agents for all or any series of the Securities, other than the Trustee, the
Company will cause each such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section:
(1)
that it will hold all sums held by it as such agent for the payment of the principal of (and premium, if any) or interest on
the Securities of that series (whether such sums have been paid to it by the Company or by any other obligor of such Securities) in trust
for the benefit of the Persons entitled thereto;
(2)
that it will give the Trustee notice of any failure by the Company (or by any other obligor of such Securities) to make any
payment of the principal of (and premium, if any) or interest on the Securities of that series when the same shall be due and payable;
(3)
that it will, at any time during the continuance of any failure referred to in the preceding paragraph (a)(2) above, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent; and
(4)
that it will perform all other duties of paying agent as set forth in this Indenture.
(b)
If the Company shall act as its own paying agent with respect to any series of the Securities, it will on or before each due
date of the principal of (and premium, if any) or interest on Securities of that series, set aside, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay such principal (and premium, if any) or interest so becoming due on Securities
of that series until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the
Trustee of such action, or any failure (by it or any other obligor on such Securities) to take such action. Whenever the Company shall
have one or more paying agents for any series of Securities, it will, prior to each due date of the principal of (and premium, if any)
or interest on any Securities of that series, deposit with the paying agent a sum sufficient to pay the principal (and premium, if any)
or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest,
and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of this action or failure so to act.
(c)
Notwithstanding anything in this Section to the contrary, (i) the agreement to hold sums in trust as provided in this Section
is subject to the provisions of Section 11.05, and (ii) the Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or direct any paying agent to pay, to the Trustee all sums held in trust by
the Company or such paying agent, such sums to be held by the Trustee upon the same terms and conditions as those upon which such sums
were held by the Company or such paying agent; and, upon such payment by the Company or any paying agent to the Trustee, the Company or
such paying agent shall be released from all further liability with respect to such money.
Section 4.04 Appointment
to Fill Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill
a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall at all times
be a Trustee hereunder.
Section 4.05 Compliance
with Consolidation Provisions.
The Company will not, while any of the Securities
remain Outstanding, consolidate with or merge into any other Person, in either case where the Company is not the survivor of such transaction,
or sell or convey all or substantially all of its property to any other Person unless the provisions of Article Ten hereof are complied
with.
ARTICLE
5
SECURITYHOLDERS’ LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
Section 5.01 Company
to Furnish Trustee Names and Addresses of Securityholders.
The Company will furnish or cause to be furnished
to the Trustee (a) within 15 days after each regular record date (as defined in Section 2.03) a list, in such form as the Trustee may
reasonably require, of the names and addresses of the holders of each series of Securities as of such regular record date, provided that
the Company shall not be obligated to furnish or cause to furnish such list at any time that the list shall not differ in any respect
from the most recent list furnished to the Trustee by the Company and (b) at such other times as the Trustee may request in writing within
30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior
to the time such list is furnished; provided, however, that, in either case, no such list need be furnished for any series for which the
Trustee shall be the Security Registrar.
Section 5.02 Preservation
Of Information; Communications With Securityholders.
(a)
The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses
of the holders of Securities contained in the most recent list furnished to it as provided in Section 5.01 and as to the names and addresses
of holders of Securities received by the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b)
The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c)
Securityholders may communicate as provided in Section 312(b) of the Trust Indenture Act with other Securityholders with respect
to their rights under this Indenture or under the Securities, and, in connection with any such communications, the Trustee shall satisfy
its obligations under Section 312(b) of the Trust Indenture Act in accordance with the provisions of Section 312(b) of the Trust Indenture
Act.
Section 5.03 Reports
by the Company.
The Company covenants and agrees to provide a
copy to the Trustee, after the Company files the same with the Securities and Exchange Commission, copies of the annual reports and of
the information, documents and other reports (or copies of such portions of any of the foregoing as the Securities and Exchange Commission
may from time to time by rules and regulations prescribe) that the Company files with the Securities and Exchange Commission pursuant
to Section 13 or Section 15(d) of the Exchange Act; provided, however, the Company shall not be required to deliver to the Trustee any
materials for which the Company has sought and received confidential treatment by the Securities and Exchange Commission. The Company
shall also comply with the requirements of Section 314 of the Trust Indenture Act, but only to the extent then applicable to the Company.
Section 5.04 Reports
by the Trustee.
(a)
On or before July 1 in each year in which any of the Securities are Outstanding, the Trustee shall transmit by mail, first
class postage prepaid, to the Securityholders, as their names and addresses appear upon the Security Register, a brief report dated as
of the preceding May 1, if and to the extent required under Section 313(a) of the Trust Indenture Act.
(b)
The Trustee shall comply with Section 313(b) and 313(c) of the Trust Indenture Act.
(c) A copy of each such report
shall, at the time of such transmission to Securityholders, be filed by the Trustee with the Company, with each securities exchange upon
which any Securities are listed (if so listed) and also with the Securities and Exchange Commission. The Company agrees to notify the
Trustee when any Securities become listed on any securities exchange.
ARTICLE
6
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 6.01 Events of
Default.
(a)
Whenever used herein with respect to Securities of a particular series, “Event of Default” means any one or more
of the following events that has occurred and is continuing:
(1)
the Company defaults in the payment of any installment of interest upon any of the Securities of that series, as and when the
same shall become due and payable, and such default continues for a period of 30 days; provided, however, that a valid extension of an
interest payment period by the Company in accordance with the terms of any indenture supplemental hereto shall not constitute a default
in the payment of interest for this purpose;
(2)
the Company defaults in the payment of the principal of (or premium, if any, on) any of the Securities of that series as and
when the same shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required
by any sinking or analogous fund established with respect to that series; provided, however, that a valid extension of the maturity of
such Securities in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment of principal
or premium, if any;
(3)
the Company fails to observe or perform any other of its covenants or agreements with respect to that series contained in this
Indenture or otherwise established with respect to that series of Securities pursuant to Section 2.01 hereof (other than a covenant or
agreement that has been expressly included in this Indenture solely for the benefit of one or more series of Securities other than such
series) for a period of 90 days after the date on which written notice of such failure, requiring the same to be remedied and stating
that such notice is a “Notice of Default” hereunder, shall have been given to the Company by the Trustee, by registered or
certified mail, or to the Company and the Trustee by the holders of at least 25% in principal amount of the Securities of that series
at the time Outstanding;
(4)
the Company pursuant to or within the meaning of any Bankruptcy Law (i) commences a voluntary case, (ii) consents to the entry
of an order for relief against it in an involuntary case, (iii) consents to the appointment of a Custodian of it or for all or substantially
all of its property or (iv) makes a general assignment for the benefit of its creditors; or
(5)
a court of competent jurisdiction enters an order under any Bankruptcy Law that (i) is for relief against the Company in an
involuntary case, (ii) appoints a Custodian of the Company for all or substantially all of its property or (iii) orders the liquidation
of the Company, and the order or decree remains unstayed and in effect for 90 days.
(b)
In each and every such case (other than an Event of Default specified in clause (4) or clause (5) above), unless the principal
of all the Securities of that series shall have already become due and payable, either the Trustee or the holders of not less than 25%
in aggregate principal amount of the Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to
the Trustee if given by such Securityholders), may declare the principal of (and premium, if any, on) and accrued and unpaid interest
on all the Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall
be immediately due and payable. If an Event of Default specified in clause (4) or clause (5) above occurs, the principal of and accrued
and unpaid interest on all the Securities of that series shall automatically be immediately due and payable without any declaration or
other act on the part of the Trustee or the holders of the Securities.
(c)
At any time after the principal of (and premium, if any, on) and accrued and unpaid interest on the Securities of that series
shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the holders of a majority in aggregate principal amount of the Securities of that series then Outstanding
hereunder, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (i) the Company
has paid or deposited with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of that series
and the principal of (and premium, if any, on) any and all Securities of that series that shall have become due otherwise than by acceleration
(with interest upon such principal and premium, if any, and, to the extent that such payment is enforceable under applicable law, upon
overdue installments of interest, at the rate per annum expressed in the Securities of that series to the date of such payment or deposit)
and the amount payable to the Trustee under Section 7.06, and (ii) any and all Events of Default under the Indenture with respect to such
series, other than the nonpayment of principal on (and premium, if any, on) and accrued and unpaid interest on Securities of that series
that shall not have become due by their terms, shall have been remedied or waived as provided in Section 6.06.
No such rescission and annulment shall extend
to or shall affect any subsequent default or impair any right consequent thereon.
(d)
In case the Trustee shall have proceeded to enforce any right with respect to Securities of that series under this Indenture
and such proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall
have been determined adversely to the Trustee, then and in every such case, subject to any determination in such proceedings, the Company
and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of
the Company and the Trustee shall continue as though no such proceedings had been taken.
Section 6.02 Collection
of Indebtedness and Suits for Enforcement by Trustee.
(a)
The Company covenants that (i) in case it shall default in the payment of any installment of interest on any of the Securities
of a series, or in any payment required by any sinking or analogous fund established with respect to that series as and when the same
shall have become due and payable, and such default shall have continued for a period of 90 Business Days, or (ii) in case it shall default
in the payment of the principal of (or premium, if any, on) any of the Securities of a series when the same shall have become due and
payable, whether upon maturity of the Securities of a series or upon redemption or upon declaration or otherwise then, upon demand of
the Trustee, the Company will pay to the Trustee, for the benefit of the holders of the Securities of that series, the whole amount that
then shall have been become due and payable on all such Securities for principal (and premium, if any) or interest, or both, as the case
may be, with interest upon the overdue principal (and premium, if any) and (to the extent that payment of such interest is enforceable
under applicable law) upon overdue installments of interest at the rate per annum expressed in the Securities of that series; and, in
addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, and the amount payable to
the Trustee under Section 7.06.
(b)
If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums
so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final
decree against the Company or other obligor upon the Securities of that series and collect the moneys adjudged or decreed to be payable
in the manner provided by law or equity out of the property of the Company or other obligor upon the Securities of that series, wherever
situated.
(c)
In case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or
judicial proceedings affecting the Company, or its creditors or property, the Trustee shall have power to intervene in such proceedings
and take any action therein that may be permitted by the court and shall (except as may be otherwise provided by law) be entitled to file
such proofs of claim and other papers and documents as may be necessary or advisable in order to have the claims of the Trustee and of
the holders of Securities of such series allowed for the entire amount due and payable by the Company under the Indenture at the date
of institution of such proceedings and for any additional amount that may become due and payable by the Company after such date, and to
collect and receive any moneys or other property payable or deliverable on any such claim, and to distribute the same after the deduction
of the amount payable to the Trustee under Section 7.06; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the holders of Securities of such series to make such payments to the Trustee, and, in the event that the Trustee
shall consent to the making of such payments directly to such Securityholders, to pay to the Trustee any amount due it under Section 7.06.
(d)
All rights of action and of asserting claims under this Indenture, or under any of the terms established with respect to Securities
of that series, may be enforced by the Trustee without the possession of any of such Securities, or the production thereof at any trial
or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall, after provision for payment to the Trustee of any amounts due under Section 7.06,
be for the ratable benefit of the holders of the Securities of such series.
In case of an Event of Default hereunder, the
Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or agreement contained in the Indenture or in aid of the exercise of any power granted
in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
Nothing contained herein shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities of that series or the rights of any holder thereof or to authorize the Trustee to vote in respect
of the claim of any Securityholder in any such proceeding.
Section 6.03 Application
of Moneys or Property Collected.
Any moneys or property collected by the Trustee
pursuant to this Article with respect to a particular series of Securities shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such moneys or property on account of principal (or premium, if any) or interest,
upon presentation of the Securities of that series, and notation thereon of the payment, if only partially paid, and upon surrender thereof
if fully paid:
FIRST: To the payment of reasonable costs and
expenses of collection and of all amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of all indebtedness of
the Company to which such series of Securities is subordinated to the extent required by Section 7.06 and Article Fourteen;
THIRD: To the payment of the amounts then due
and unpaid upon Securities of such series for principal (and premium, if any) and interest, in respect of which or for the benefit of
which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on
such Securities for principal (and premium, if any) and interest, respectively; and
FOURTH: To the payment of the remainder, if any,
to the Company or any other Person lawfully entitled thereto, as requested by the Company.
Section 6.04 Limitation
on Suits.
No holder of any Security of any series shall
have any right by virtue or by availing of any provision of this Indenture to institute any suit, action or proceeding in equity or at
law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other remedy hereunder,
unless (i) such holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof
with respect to the Securities of such series specifying such Event of Default, as hereinbefore provided; (ii) the holders of not less
than 25% in aggregate principal amount of the Securities of such series then Outstanding shall have made written request upon the Trustee
to institute such action, suit or proceeding in its own name as Trustee hereunder; (iii) such holder or holders shall have offered to
the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby;
(iv) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity, shall have failed to institute any such
action, suit or proceeding and (v) during such 60 day period, the holders of a majority in principal amount of the Securities of that
series do not give the Trustee a direction inconsistent with the request.
Notwithstanding anything contained herein to the
contrary or any other provisions of this Indenture, the right of any holder of any Security to receive payment of the principal of (and
premium, if any) and interest on such Security, as therein provided, on or after the respective due dates expressed in such Security (or
in the case of redemption, on the redemption date), or to institute suit for the enforcement of any such payment on or after such respective
dates or redemption date, shall not be impaired or affected without the consent of such holder and by accepting a Security hereunder it
is expressly understood, intended and covenanted by the taker and holder of every Security of such series with every other such taker
and holder and the Trustee, that no one or more holders of Securities of such series shall have any right in any manner whatsoever by
virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of the holders of any other of such
Securities, or to obtain or seek to obtain priority over or preference to any other such holder, or to enforce any right under this Indenture,
except in the manner herein provided and for the equal, ratable and common benefit of all holders of Securities of such series. For the
protection and enforcement of the provisions of this Section, each and every Securityholder and the Trustee shall be entitled to such
relief as can be given either at law or in equity.
Section 6.05 Rights
and Remedies Cumulative; Delay or Omission Not Waiver.
(a)
Except as otherwise provided in Section 2.07, all powers and remedies given by this Article to the Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive of any other powers and remedies available to the Trustee
or the holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture or otherwise established with respect to such Securities.
(b)
No delay or omission of the Trustee or of any holder of any of the Securities to exercise any right or power accruing upon
any Event of Default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver
of any such default or an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by this Article
or by law to the Trustee or the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Securityholders.
Section 6.06 Control
by Securityholders.
The holders of a majority in aggregate principal
amount of the Securities of any series at the time Outstanding, determined in accordance with Section 8.04, shall have the right to direct
the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee with respect to such series; provided, however, that such direction shall not be in conflict with any rule of law or with
this Indenture. Subject to the provisions of Section 7.01, the Trustee shall have the right to decline to follow any such direction if
the Trustee in good faith shall, by a Responsible Officer or officers of the Trustee, determine that the proceeding so directed, subject
to the Trustee’s duties under the Trust Indenture Act, would involve the Trustee in personal liability or might be unduly prejudicial
to the Securityholders not involved in the proceeding. The holders of a majority in aggregate principal amount of the Securities of any
series at the time Outstanding affected thereby, determined in accordance with Section 8.04, may on behalf of the holders of all of the
Securities of such series waive any past default in the performance of any of the covenants contained herein or established pursuant to
Section 2.01 with respect to such series and its consequences, except a default in the payment of the principal of, or premium, if any,
or interest on, any of the Securities of that series as and when the same shall become due by the terms of such Securities otherwise than
by acceleration (unless such default has been cured and a sum sufficient to pay all matured installments of interest and principal and
any premium has been deposited with the Trustee (in accordance with Section 6.01(c)). Upon any such waiver, the default covered thereby
shall be deemed to be cured for all purposes of this Indenture and the Company, the Trustee and the holders of the Securities of such
series shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
Section 6.07 Undertaking
to Pay Costs.
All parties to this Indenture agree, and each
holder of any Securities by such holder’s acceptance thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action
taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant
in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions
of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder, or group of Securityholders,
holding more than 10% in aggregate principal amount of the Outstanding Securities of any series, or to any suit instituted by any Securityholder
for the enforcement of the payment of the principal of (or premium, if any) or interest on any Security of such series, on or after the
respective due dates expressed in such Security or established pursuant to this Indenture.
ARTICLE
7
CONCERNING THE TRUSTEE
Section 7.01 Certain
Duties and Responsibilities of Trustee.
(a)
The Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing
of all Events of Default with respect to the Securities of that series that may have occurred, shall undertake to perform with respect
to the Securities of such series such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants
shall be read into this Indenture against the Trustee. In case an Event of Default with respect to the Securities of a series has occurred
(that has not been cured or waived), the Trustee shall exercise with respect to Securities of that series such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(b)
No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1)
prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing or waiving
of all such Events of Default with respect to that series that may have occurred:
(A)
the duties and obligations of the Trustee shall with respect to the Securities of such series be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable with respect to the Securities of such series except for the performance
of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(B)
in the absence of bad faith on the part of the Trustee, the Trustee may with respect to the Securities of such series conclusively
rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirement of this Indenture;
(2)
the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers
of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(3)
the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with
the direction of the holders of not less than a majority in principal amount of the Securities of any series at the time Outstanding relating
to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee under this Indenture with respect to the Securities of that series; and
(4)
None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers if there is reasonable
ground for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Indenture or
adequate indemnity against such risk is not reasonably assured to it.
Section 7.02 Certain
Rights of Trustee.
Except as otherwise provided in Section 7.01:
(a)
The Trustee may rely conclusively and shall be protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order, approval, bond, security or other paper or document believed
by it to be genuine and to have been signed or presented by the proper party or parties;
(b)
Any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution
or an instrument signed in the name of the Company by any authorized officer of the Company (unless other evidence in respect thereof
is specifically prescribed herein);
(c)
The Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or omitted hereunder in good faith and in reliance thereon;
(d)
The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that may be incurred therein or thereby;
nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default with respect
to a series of the Securities (that has not been cured or waived), to exercise with respect to Securities of that series such of the rights
and powers vested in it by this Indenture, and to use the same degree of care and skill in their exercise, as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs;
(e)
The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this Indenture;
(f)
The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, security, or other papers or documents, unless requested
in writing so to do by the holders of not less than a majority in principal amount of the Outstanding Securities of the particular series
affected thereby (determined as provided in Section 8.04); provided, however, that if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable
indemnity against such costs, expenses or liabilities as a condition to so proceeding. The reasonable expense of every such examination
shall be paid by the Company or, if paid by the Trustee, shall be repaid by the Company upon demand; and
(g)
The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
In addition, the Trustee shall not be deemed to
have knowledge of any Default or Event of Default except (1) any Event of Default occurring pursuant to Sections 6.01(a)(1), 6.01(a)(2)
and 4.01 hereof or (2) any Default or Event of Default of which the Trustee shall have received written notification in the manner set
forth in this Indenture or a Responsible Officer of the Trustee shall have obtained actual knowledge. Delivery of reports, information
and documents to the Trustee under Section 5.03 is for informational purposes only and the information and the Trustee’s receipt
of the foregoing shall not constitute constructive notice of any information contained therein, or determinable from information contained
therein including the Company’s compliance with any of their covenants thereunder (as to which the Trustee is entitled to rely conclusively
on an Officers’ Certificate).
Section 7.03 Trustee
Not Responsible for Recitals or Issuance or Securities.
(a)
The recitals contained herein and in the Securities shall be taken as the statements of the Company, and the Trustee assumes
no responsibility for the correctness of the same.
(b)
The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities.
(c)
The Trustee shall not be accountable for the use or application by the Company of any of the Securities or of the proceeds
of such Securities, or for the use or application of any moneys paid over by the Trustee in accordance with any provision of this Indenture
or established pursuant to Section 2.01, or for the use or application of any moneys received by any paying agent other than the Trustee.
Section 7.04 May
Hold Securities.
The Trustee or any paying agent or Security Registrar,
in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not
Trustee, paying agent or Security Registrar.
Section 7.05 Moneys
Held in Trust.
Subject to the provisions of Section 11.05, all
moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were
received, but need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for
interest on any moneys received by it hereunder except such as it may agree with the Company to pay thereon.
Section 7.06 Compensation
and Reimbursement.
(a)
The Company covenants and agrees to pay to the Trustee, and the Trustee shall be entitled to, such reasonable compensation
(which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) as the Company and
the Trustee may from time to time agree in writing, for all services rendered by it in the execution of the trusts hereby created and
in the exercise and performance of any of the powers and duties hereunder of the Trustee, and, except as otherwise expressly provided
herein, the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred
or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses
and disbursements of its counsel and of all Persons not regularly in its employ), except any such expense, disbursement or advance as
may arise from its negligence or bad faith and except as the Company and Trustee may from time to time agree in writing. The Company also
covenants to indemnify the Trustee (and its officers, agents, directors and employees) for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on the part of the Trustee and arising out of or in connection with the
acceptance or administration of this trust, including the reasonable costs and expenses of defending itself against any claim of liability
in the premises.
(b)
The obligations of the Company under this Section to compensate and indemnify the Trustee and to pay or reimburse the Trustee
for reasonable expenses, disbursements and advances shall constitute indebtedness of the Company to which the Securities are subordinated.
Such additional indebtedness shall be secured by a lien prior to that of the Securities upon all property and funds held or collected
by the Trustee as such, except funds held in trust for the benefit of the holders of particular Securities.
Section 7.07 Reliance
on Officers’ Certificate.
Except as otherwise provided in Section 7.01,
whenever in the administration of the provisions of this Indenture the Trustee shall deem it reasonably necessary or desirable that a
matter be proved or established prior to taking or suffering or omitting to take any action hereunder, such matter (unless other evidence
in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed
to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee and such certificate, in the absence
of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted
to be taken by it under the provisions of this Indenture upon the faith thereof.
Section 7.08 Disqualification;
Conflicting Interests.
If the Trustee has or shall acquire any “conflicting
interest” within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the Company shall in all respects comply
with the provisions of Section 310(b) of the Trust Indenture Act.
Section 7.09 Corporate
Trustee Required; Eligibility.
There shall at all times be a Trustee with respect
to the Securities issued hereunder which shall at all times be a corporation organized and doing business under the laws of the United
States of America or any state or territory thereof or of the District of Columbia, or a corporation or other Person permitted to act
as trustee by the Securities and Exchange Commission, authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision or examination by federal, state,
territorial, or District of Columbia authority.
If such corporation or other Person publishes
reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such corporation or other Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so published. The Company may not, nor may any Person directly
or indirectly controlling, controlled by, or under common control with the Company, serve as Trustee. In case at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign immediately in the manner and with
the effect specified in Section 7.10.
Section 7.10 Resignation
and Removal; Appointment of Successor.
(a)
The Trustee or any successor hereafter appointed may at any time resign with respect to the Securities of one or more series
by giving written notice thereof to the Company and by transmitting notice of resignation by mail, first class postage prepaid, to the
Securityholders of such series, as their names and addresses appear upon the Security Register. Upon receiving such notice of resignation,
the Company shall promptly appoint a successor trustee with respect to Securities of such series by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to
the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within 30 days after the mailing
of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor
trustee with respect to Securities of such series, or any Securityholder of that series who has been a bona fide holder of a Security
or Securities for at least six months may on behalf of himself and all others similarly situated, petition any such court for the appointment
of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(b)
In case at any time any one of the following shall occur:
(1)
the Trustee shall fail to comply with the provisions of Section 7.08 after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a Security or Securities for at least six months; or
(2)
the Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 and shall fail to resign after written
request therefor by the Company or by any such Securityholder; or
(3)
the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy
proceeding, or a receiver of the Trustee or of its property shall be appointed or consented to, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove
the Trustee with respect to all Securities and appoint a successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or
any Securityholder who has been a bona fide holder of a Security or Securities for at least six months may, on behalf of that holder and
all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor
trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c)
The holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may at any
time remove the Trustee with respect to such series by so notifying the Trustee and the Company and may appoint a successor Trustee for
such series with the consent of the Company.
(d)
Any resignation or removal of the Trustee and appointment of a successor trustee with respect to the Securities of a series
pursuant to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided
in Section 7.11.
(e)
Any successor trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more series
or all of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series.
Section 7.11 Acceptance
of Appointment By Successor.
(a)
In case of the appointment hereunder of a successor trustee with respect to all Securities, every such successor trustee so
appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring
to such successor trustee all the rights, powers, and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such
successor trustee all property and money held by such retiring Trustee hereunder.
(b)
In case of the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all) series,
the Company, the retiring Trustee and each successor trustee with respect to the Securities of one or more series shall execute and deliver
an indenture supplemental hereto wherein each successor trustee shall accept such appointment and which (i) shall contain such provisions
as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor trustee
relates, (ii) shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee
and that no Trustee shall be responsible for any act or failure to act on the part of any other Trustee hereunder; and upon the execution
and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided
therein, such retiring Trustee shall with respect to the Securities of that or those series to which the appointment of such successor
trustee relates have no further responsibility for the exercise of rights and powers or for the performance of the duties and obligations
vested in the Trustee under this Indenture, and each such successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor trustee relates; but, on request of the Company or any successor trustee, such retiring Trustee
shall duly assign, transfer and deliver to such successor trustee, to the extent contemplated by such supplemental indenture, the property
and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such
successor trustee relates.
(c)
Upon request of any such successor trustee, the Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section,
as the case may be.
(d)
No successor trustee shall accept its appointment unless at the time of such acceptance such successor trustee shall be qualified
and eligible under this Article.
(e)
Upon acceptance of appointment by a successor trustee as provided in this Section, the Company shall transmit notice of the
succession of such trustee hereunder by mail, first class postage prepaid, to the Securityholders, as their names and addresses appear
upon the Security Register. If the Company fails to transmit such notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be transmitted at the expense of the Company.
Section 7.12 Merger,
Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which the Trustee shall be a party, or any corporation succeeding to the corporate trust business of the Trustee, shall be the successor
of the Trustee hereunder, provided that such corporation shall be qualified under the provisions of Section 7.08 and eligible under the
provisions of Section 7.09, without the execution or filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 7.13 Preferential
Collection of Claims Against the Company.
The Trustee shall comply with Section 311(a) of
the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
Section 7.14 Notice
of Default
If any Default or any Event of Default occurs
and is continuing and if such Default or Event of Default is known to a Responsible Officer of the Trustee, the Trustee shall mail to
each Securityholder in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act notice of the Default or Event
of Default within 90 days after it occurs and becomes known to the Trustee, unless such Default or Event of Default has been cured; provided,
however, that, except in the case of a default in the payment of the principal of (or premium, if any) or interest on any Security,
the Trustee shall be protected in withholding such notice if and so long as the 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 Securityholders.
ARTICLE
8
CONCERNING THE SECURITYHOLDERS
Section 8.01 Evidence
of Action by Securityholders.
Whenever in this Indenture it is provided that
the holders of a majority or specified percentage in aggregate principal amount of the Securities of a particular series may take any
action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action),
the fact that at the time of taking any such action the holders of such majority or specified percentage of that series have joined therein
may be evidenced by any instrument or any number of instruments of similar tenor executed by such holders of Securities of that series
in person or by agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders
of any series any request, demand, authorization, direction, notice, consent, waiver or other action, the Company may, at its option,
as evidenced by an Officers’ Certificate, fix in advance a record date for such series for the determination of Securityholders
entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action, but the Company shall have no
obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other
action may be given before or after the record date, but only the Securityholders of record at the close of business on the record date
shall be deemed to be Securityholders for the purposes of determining whether Securityholders of the requisite proportion of Outstanding
Securities of that series have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver
or other action, and for that purpose the Outstanding Securities of that series shall be computed as of the record date; provided, however,
that no such authorization, agreement or consent by such Securityholders on the record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later than six months after the record date.
Section 8.02 Proof
of Execution by Securityholders.
Subject to the provisions of Section 7.01, proof
of the execution of any instrument by a Securityholder (such proof will not require notarization) or his agent or proxy and proof of the
holding by any Person of any of the Securities shall be sufficient if made in the following manner:
(a)
The fact and date of the execution by any such Person of any instrument may be proved in any reasonable manner acceptable to
the Trustee.
(b)
The ownership of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security
Registrar thereof.
The Trustee may require such additional proof
of any matter referred to in this Section as it shall deem necessary.
Section 8.03 Who
May be Deemed Owners.
Prior to the due presentment for registration
of transfer of any Security, the Company, the Trustee, any paying agent and any Security Registrar may deem and treat the Person in whose
name such Security shall be registered upon the books of the Company as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notice of ownership or writing thereon made by anyone other than the Security Registrar) for
the purpose of receiving payment of or on account of the principal of, premium, if any, and (subject to Section 2.03) interest on such
Security and for all other purposes; and neither the Company nor the Trustee nor any paying agent nor any Security Registrar shall be
affected by any notice to the contrary.
Section 8.04 Certain
Securities Owned by Company Disregarded.
In determining whether the holders of the requisite
aggregate principal amount of Securities of a particular series have concurred in any direction, consent or waiver under this Indenture,
the Securities of that series that are owned by the Company or any other obligor on the Securities of that series or by any Person directly
or indirectly controlling or controlled by or under common control with the Company or any other obligor on the Securities of that series
shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that for the purpose of determining
whether the Trustee shall be protected in relying on any such direction, consent or waiver, only Securities of such series that the Trustee
actually knows are so owned shall be so disregarded. The Securities so owned that have been pledged in good faith may be regarded as Outstanding
for the purposes of this Section, if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right so to act
with respect to such Securities and that the pledgee is not a Person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Company or any such other obligor. In case of a dispute as to such right, any decision by the Trustee
taken upon the advice of counsel shall be full protection to the Trustee.
Section 8.05 Actions
Binding on Future Securityholders.
At any time prior to (but not after) the evidencing
to the Trustee, as provided in Section 8.01, of the taking of any action by the holders of the majority or percentage in aggregate principal
amount of the Securities of a particular series specified in this Indenture in connection with such action, any holder of a Security of
that series that is shown by the evidence to be included in the Securities the holders of which have consented to such action may, by
filing written notice with the Trustee, and upon proof of holding as provided in Section 8.02, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the holder of any Security shall be conclusive and binding upon such holder and
upon all future holders and owners of such Security, and of any Security issued in exchange therefor, on registration of transfer thereof
or in place thereof, irrespective of whether or not any notation in regard thereto is made upon such Security. Any action taken by the
holders of the majority or percentage in aggregate principal amount of the Securities of a particular series specified in this Indenture
in connection with such action shall be conclusively binding upon the Company, the Trustee and the holders of all the Securities of that
series.
ARTICLE
9
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental
Indentures Without the Consent of Securityholders.
In addition to any supplemental indenture otherwise
authorized by this Indenture, the Company and the Trustee may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as then in effect), without the consent of the Securityholders,
for one or more of the following purposes:
(a)
to cure any ambiguity, defect, or inconsistency herein or in the Securities of any series;
(b)
to comply with Article Ten;
(c)
to provide for uncertificated Securities in addition to or in place of certificated Securities and to make all appropriate
changes for such purpose;
(d)
to add to the covenants, restrictions, conditions or provisions relating to the Company for the benefit of the holders of
all or any series of Securities (and if such covenants, restrictions, conditions or provisions are to be for the benefit of less than
all series of Securities, stating that such covenants, restrictions, conditions or provisions are expressly being included solely for
the benefit of such series), to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default, or to surrender any right or power herein conferred upon the Company;
(e)
to add to, delete from, or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes
of issue, authentication, and delivery of Securities, as herein set forth;
(f)
to make any change that does not adversely affect the rights of any Securityholder in any material respect;
(g)
to provide for the issuance of and establish the form and terms and conditions of the Securities of any series as provided
in Section 2.01, to establish the form of any certifications required to be furnished pursuant to the terms of this Indenture or any series
of Securities, or to add to the rights of the holders of any series of Securities;
(h)
to evidence and provide for the acceptance of appointment hereunder by a successor trustee; or
(i)
to comply with any requirements of the Securities and Exchange Commission or any successor in connection with the qualification
of this Indenture under the Trust Indenture Act.
The Trustee is hereby authorized to join with
the Company in the execution of any such supplemental indenture, and to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental indenture that affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions
of this Section may be executed by the Company and the Trustee without the consent of the holders of any of the Securities at the time
Outstanding, notwithstanding any of the provisions of Section 9.02.
Section 9.02 Supplemental
Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Section
8.01) of the holders of not less than a majority in aggregate principal amount of the Securities of each series affected by such supplemental
indenture or indentures at the time Outstanding, the Company, when authorized by a Board Resolution, and the Trustee may from time to
time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture
Act as then in effect) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner not covered by Section 9.01 the rights of the holders of the
Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the
holders of each Security then Outstanding and affected thereby, (a) extend the fixed maturity of any Securities of any series, or reduce
the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any premium payable upon
the redemption thereof, (b) make any Security payable in money other than that stated in the Security, (c) impair the right of any Holder
to receive payment of principal of, premium, if any, and interest, if any, on, such Holder’s Securities on or after the due dates
therefor or to institute suit for the enforcement of any payment, or (d) adversely change the right to convert or exchange, including
decreasing the conversion rate or increasing the conversion price of, any Security, or (e) reduce the aforesaid percentage of Securities,
the holders of which are required to consent to any such supplemental indenture.
It shall not be necessary for the consent of the
Securityholders of any series affected thereby under this Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance thereof.
Section 9.03 Effect of
Supplemental Indentures.
Upon the execution of any supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, this Indenture shall, with respect to such series, be and be deemed to
be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under
this Indenture of the Trustee, the Company and the holders of Securities of the series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any
such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
Section 9.04 Securities
Affected by Supplemental Indentures.
Securities of any series affected by a supplemental
indenture, authenticated and delivered after the execution of such supplemental indenture pursuant to the provisions of this Article or
of Section 10.01, may bear a notation in form approved by the Company, provided such form meets the requirements of any securities exchange
upon which such series may be listed, as to any matter provided for in such supplemental indenture. If the Company shall so determine,
new Securities of that series so modified as to conform, in the opinion of the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Company, authenticated by the Trustee and delivered in exchange for
the Securities of that series then Outstanding.
Section 9.05 Execution
of Supplemental Indentures.
Upon the request of the Company, accompanied by
its Board Resolutions authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture
or otherwise, in which case the Trustee may in its discretion but shall not be obligated to enter into such supplemental indenture. The
Trustee, subject to the provisions of Section 7.01, will be entitled to receive and will be fully protected in relying upon an Officers’
Certificate and an Opinion of Counsel stating that any supplemental indenture executed pursuant to this Article is authorized or permitted
by, and conforms to, the terms of this Article and that it is proper for the Trustee under the provisions of this Article to join in the
execution thereof; provided, however, that such Officers’ Certificate or Opinion of Counsel need not be provided in connection with
the execution of a supplemental indenture that establishes the terms of a series of Securities pursuant to Section 2.01 hereof.
Promptly after the execution by the Company and
the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Trustee shall transmit by mail, first class
postage prepaid, a notice, setting forth in general terms the substance of such supplemental indenture, to the Securityholders of all
series affected thereby as their names and addresses appear upon the Security Register. Any failure of the Trustee to mail such notice,
or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
ARTICLE
10
SUCCESSOR ENTITY
Section 10.01 Company
May Consolidate, Etc.
The Company shall not consolidate with or merge
into any other Person (in a transaction in which the Company is not the surviving corporation) or convey, transfer or lease its properties
and assets substantially as an entirety to any Person, unless (a) the Person formed by such consolidation or into which the Company is
merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company substantially
as an entirety shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, the due and punctual payment of the principal of and any premium and interest on all the Securities and the performance
or observance of every covenant of this Indenture on the part of the Company to be performed, by supplemental indenture satisfactory in
form to the Trustee, executed and delivered to the Trustee, by the Person (if other than the Company) formed by such consolidation or
into which the Company shall have been merged or by the Person which shall have acquired the Company’s assets; (b) immediately after
giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company or any Subsidiary as a result
of such transaction as having been incurred by the Company or such Subsidiary at the time of 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 Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease 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.
The restrictions in this Section 10.01 shall not
apply to the merger of the Company with or into a single direct or indirect wholly owned Subsidiary.
Section 10.02
Successor Entity Substituted.
(a)
In case of any such consolidation, merger, sale, conveyance, transfer or other disposition and upon the assumption by the successor
entity by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the obligations set
forth under Section 10.01 on all of the Securities of all series Outstanding, such successor entity shall succeed to and be substituted
for the Company with the same effect as if it had been named as the Company herein, and thereupon the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and the Securities.
(b)
In case of any such consolidation, merger, sale, conveyance, transfer or other disposition, such changes in phraseology and
form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate.
(c)
Nothing contained in this Article shall require any action by the Company in the case of a consolidation or merger of any Person
into the Company where the Company is the survivor of such transaction, or the acquisition by the Company, by purchase or otherwise, of
all or any part of the property of any other Person (whether or not affiliated with the Company).
Section 10.03 Evidence
of Consolidation, Etc. to Trustee.
The Trustee, subject to the provisions of Section
7.01, may receive an Officers’ Certificate or an Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, conveyance, transfer or other disposition, and any such assumption, comply with the provisions of this Article.
ARTICLE
11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction
and Discharge of Indenture.
If at any time: (a) the Company shall have delivered
to the Trustee for cancellation all Securities of a series theretofore authenticated and not delivered to the Trustee for cancellation
(other than any Securities that shall have been destroyed, lost or stolen and that shall have been replaced or paid as provided in Section
2.07 and Securities for whose payment money or Governmental Obligations have theretofore been deposited in trust or segregated and held
in trust by the Company and thereupon repaid to the Company or discharged from such trust, as provided in Section 11.05); or (b) all such
Securities of a particular series not theretofore delivered to the Trustee for cancellation shall have become due and payable, or are
by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption, and the Company shall deposit or cause to be deposited with the Trustee as trust
funds the entire amount in moneys or Governmental Obligations or a combination thereof, sufficient in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay at maturity or upon
redemption all Securities of that series not theretofore delivered to the Trustee for cancellation, including principal (and premium,
if any) and interest due or to become due to such date of maturity or date fixed for redemption, as the case may be, and if the Company
shall also pay or cause to be paid all other sums payable hereunder with respect to such series by the Company then this Indenture shall
thereupon cease to be of further effect with respect to such series except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02,
4.03 and 7.10, that shall survive until the date of maturity or redemption date, as the case may be, and Sections 7.06 and 11.05, that
shall survive to such date and thereafter, and the Trustee, on demand of the Company and at the cost and expense of the Company shall
execute proper instruments acknowledging satisfaction of and discharging this Indenture with respect to such series.
Section 11.02
Discharge of Obligations.
If at any time all such Securities of a particular
series not heretofore delivered to the Trustee for cancellation or that have not become due and payable as described in Section 11.01
shall have been paid by the Company by depositing irrevocably with the Trustee as trust funds moneys or an amount of Governmental Obligations
sufficient to pay at maturity or upon redemption all such Securities of that series not theretofore delivered to the Trustee for cancellation,
including principal (and premium, if any) and interest due or to become due to such date of maturity or date fixed for redemption, as
the case may be, and if the Company shall also pay or cause to be paid all other sums payable hereunder by the Company with respect to
such series, then after the date such moneys or Governmental Obligations, as the case may be, are deposited with the Trustee the obligations
of the Company under this Indenture with respect to such series shall cease to be of further effect except for the provisions of Sections
2.03, 2.05, 2.07, 4,01, 4.02, 4,03, 7.06, 7.10 and 11.05 hereof that shall survive until such Securities shall mature and be paid.
Thereafter, Sections 7.06 and 11.05 shall survive.
Section 11.03 Deposited
Moneys to be Held in Trust.
All moneys or Governmental Obligations deposited
with the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be available for payment as due, either directly
or through any paying agent (including the Company acting as its own paying agent), to the holders of the particular series of Securities
for the payment or redemption of which such moneys or Governmental Obligations have been deposited with the Trustee.
Section 11.04
Payment of Moneys Held by Paying Agents.
In connection with the satisfaction and discharge
of this Indenture all moneys or Governmental Obligations then held by any paying agent under the provisions of this Indenture shall, upon
demand of the Company, be paid to the Trustee and thereupon such paying agent shall be released from all further liability with respect
to such moneys or Governmental Obligations.
Section 11.05
Repayment to Company.
Any moneys or Governmental Obligations deposited
with any paying agent or the Trustee, or then held by the Company, in trust for payment of principal of or premium, if any, or interest
on the Securities of a particular series that are not applied but remain unclaimed by the holders of such Securities for at least two
years after the date upon which the principal of (and premium, if any) or interest on such Securities shall have respectively become due
and payable, or such other shorter period set forth in applicable escheat or abandoned or unclaimed property law, shall be repaid to the
Company on May 31 of each year or upon the Company’s request or (if then held by the Company) shall be discharged from such trust;
and thereupon the paying agent and the Trustee shall be released from all further liability with respect to such moneys or Governmental
Obligations, and the holder of any of the Securities entitled to receive such payment shall thereafter, as a general creditor, look only
to the Company for the payment thereof.
ARTICLE
12
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 12.01 No Recourse.
No recourse under or upon any obligation, covenant
or agreement of this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof, shall be had against
any incorporator, stockholder, officer or director, past, present or future as such, of the Company or of any predecessor or successor
corporation, either directly or through the Company or any such predecessor or successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Indenture
and the obligations issued hereunder are solely corporate obligations, and that no such personal liability whatever shall attach to, or
is or shall be incurred by, the incorporators, stockholders, officers or directors as such, of the Company or of any predecessor or successor
corporation, or any of them, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by constitution or statute, of, and any and all such rights and
claims against, every such incorporator, stockholder, officer or director as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture
and the issuance of such Securities.
ARTICLE
13
MISCELLANEOUS PROVISIONS
Section 13.01
Effect on Successors and Assigns.
All the covenants, stipulations, promises and
agreements in this Indenture made by or on behalf of the Company shall bind its successors and assigns, whether so expressed or not.
Section 13.02
Actions by Successor.
Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any board, committee or officer of the Company shall and may be done and performed
with like force and effect by the corresponding board, committee or officer of any corporation that shall at the time be the lawful successor
of the Company.
Section 13.03
Surrender of Company Powers.
The Company by instrument in writing executed
by authority of its Board of Directors and delivered to the Trustee may surrender any of the powers reserved to the Company, and thereupon
such power so surrendered shall terminate both as to the Company and as to any successor corporation.
Section 13.04
Notices.
Except as otherwise expressly provided herein,
any notice, request or demand that by any provision of this Indenture is required or permitted to be given, made or served by the Trustee
or by the holders of Securities or by any other Person pursuant to this Indenture to or on the Company may be given or served by being
deposited in first class mail, postage prepaid, addressed (until another address is filed in writing by the Company with the Trustee),
as follows: 8798 9th Street, Rancho Cucamonga, CA 91730, with a copy to Michelman & Robinson, LLP, 605 Third Avenue, 30th Floor, New
York, New York 10158, Attention: Megan Penick, Esq. Any notice, election, request or demand by the Company or any Securityholder or by
any other Person pursuant to this Indenture to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes,
if given or made in writing at the Corporate Trust Office of the Trustee.
Section 13.05
Governing Law.
This Indenture and each Security shall be deemed
to be a contract made under the internal laws of the State of New York, and for all purposes shall be construed in accordance with the
laws of said State, except to the extent that the Trust Indenture Act is applicable.
Section 13.06
Treatment of Securities as Debt.
It is intended that the Securities will be treated
as indebtedness and not as equity for federal income tax purposes. The provisions of this Indenture shall be interpreted to further this
intention.
Section 13.07 Certificates
and Opinions as to Conditions Precedent.
(a)
Upon any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture,
the Company shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent provided for in this Indenture
(other than the certificate to be delivered pursuant to Section 13.13) relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in the
case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.
(b)
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition
or covenant in this Indenture shall include (i) a statement that the Person making such certificate or opinion has read such covenant
or condition; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (iii) a statement that, in the opinion of such Person, he has made such examination
or investigation as is reasonably necessary to enable him to express an informed opinion as to whether or not such covenant or condition
has been complied with; and (iv) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been
complied with.
Section 13.08
Payments on Business Days.
Except as provided pursuant to Section 2.01 pursuant
to a Board Resolution, and set forth in an Officers’ Certificate, or established in one or more indentures supplemental to this
Indenture, in any case where the date of maturity of interest or principal of any Security or the date of redemption of any Security shall
not be a Business Day, then payment of interest or principal (and premium, if any) may be made on the next succeeding Business Day with
the same force and effect as if made on the nominal date of maturity or redemption, and no interest shall accrue for the period after
such nominal date.
Section 13.09
Conflict with Trust Indenture Act.
If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.
Section 13.10
Indenture and Securities Solely Corporate Obligations.
No recourse for the payment of the principal of,
premium, if any, or interest on any Securities, or for any claim based thereon or otherwise in respect thereof, and no recourse under
or upon any obligation, covenant or agreement of the Company in this Indenture or in any supplemental indenture or in any Security, or
because of the creation of any indebtedness represented thereby, shall be had against any incorporator, shareholder, employee, agent,
officer, director or subsidiary, as such, past, present or future, of the Company or of any successor entity, either directly or through
the Company or any successor entity, whether by virtue of any constitution, statute, or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition
of, and as a consideration for, the execution of this Indenture and the issuance of the Securities.
Section 13.11 Counterparts.
This Indenture may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
Section 13.12
Separability.
In case any one or more of the provisions contained
in this Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of such Securities, but this
Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein
or therein.
Section 13.13
Compliance Certificates.
The Company shall deliver to the Trustee, within
120 days after the end of each fiscal year during which any Securities of any series were outstanding, a compliance certificate stating
whether or not the signer knows of any Default or Event of Default that occurred during such fiscal year. Such certificate shall contain
a certification from the principal executive officer, principal financial officer or principal accounting officer of the Company that
a review has been conducted of the activities of the Company and the Company’s performance under this Indenture and that the Company
has complied with all conditions and covenants under this Indenture. For purposes of this Section 13.13, such compliance shall be determined
without regard to any period of grace or requirement of notice provided under this Indenture. If the officer of the Company signing such
certificate has knowledge of such a Default or Event of Default, the certificate shall describe any such Default or Event of Default and
its status.
ARTICLE
14
SUBORDINATION OF SECURITIES
Section 14.01 Agreement
of Subordination.
The Company covenants and agrees, and each holder
of Securities issued hereunder by his acceptance thereof likewise covenants and agrees, that all Securities shall be issued subject to
the provisions of this Article 14; and each Securityholder, whether upon original issue or upon transfer or assignment thereof, accepts
and agrees to be bound by such provisions.
The payment of the principal of, premium, if any,
and interest on all Securities issued hereunder shall, to the extent and in the manner hereinafter set forth, be subordinated and subject
in right of payment to the prior payment in full of all Senior Indebtedness of the Company, whether outstanding at the date of this Indenture
or thereafter incurred.
The provisions of this Article 14 define the subordination
of the Securities, as obligations of the Company, with respect to Senior Indebtedness of the Company.
No provision of this Article 14 shall prevent
the occurrence of any default or Event of Default hereunder.
Section 14.02
Payments to Securityholders.
In the event and during the continuation of any
default in the payment of principal, premium, interest or any other payment due on any Senior Indebtedness of the Company continuing beyond
the period of grace, if any, specified in the instrument or lease evidencing such Senior Indebtedness of the Company, then, unless and
until such default shall have been cured or waived or shall have ceased to exist, no payment shall be made by the Company with respect
to the principal of, or premium, if any, or interest on the Securities, except payments made pursuant to Article 11 hereof from monies
deposited with the Trustee pursuant thereto prior to the happening of such default.
Upon any payment by the Company, or distribution
of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution or winding-up
or liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other
proceedings, all amounts due or to become due upon all Senior Indebtedness of the Company shall first be paid in full, or payment thereof
provided for in money in accordance with its terms, before any payment is made on account of the principal (and premium, if any) or interest
on the Securities (except payments made pursuant to Article 11 hereof from monies deposited with the Trustee pursuant thereto prior to
the happening of such dissolution, winding-up, liquidation or reorganization); and upon any such dissolution or winding-up or liquidation
or reorganization any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property
or securities, to which the holders of the Securities or the Trustee would be entitled, except for the provisions of this Article 14,
shall (except as aforesaid) be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, or by the holders of the Securities or by the Trustee under this Indenture if received by them or
it, directly to the holders of Senior Indebtedness of the Company (pro rata to such holders on the basis of the respective amounts of
Senior Indebtedness of the Company held by such holders, as calculated by the Company) or their representative or representatives, or
to the trustee or trustees under any indenture pursuant to which any instruments evidencing any Senior Indebtedness of the Company may
have been issued, as their respective interests may appear, to the extent necessary to pay all Senior Indebtedness of the Company in full,
in money or money’s worth, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness
of the Company, before any payment or distribution is made to the holders of the Securities or to the Trustee.
In the event that, notwithstanding the foregoing,
any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, prohibited by
the foregoing, shall be received by the Trustee or the holders of the Securities before all Senior Indebtedness of the Company is paid
in full, or provision is made for such payment in money in accordance with its terms, such payment or distribution shall be held in trust
for the benefit of and shall be paid over or delivered to the holders of Senior Indebtedness of the Company or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any Senior Indebtedness
of the Company may have been issued, as their respective interests may appear, as calculated by the Company, for application to the payment
of all Senior Indebtedness of the Company remaining unpaid to the extent necessary to pay all Senior Indebtedness of the Company in full
in money in accordance with its terms, after giving effect to any concurrent payment or distribution to or for the holders of such Senior
Indebtedness.
For purposes of this Article 14, the words, “cash,
property or securities” shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities
of the Company or any other corporation provided for by a plan of reorganization or readjustment, the payment of which is subordinated
at least to the extent provided in this Article 14 with respect to the Securities to the payment of all Senior Indebtedness of the Company
which may at the time be outstanding; provided that (i) the Senior Indebtedness of the Company is assumed by the new corporation, if any,
resulting from any such reorganization or readjustment, and (ii) the rights of the holders of the Senior Indebtedness of the Company (other
than leases) and of leases which are assumed are not, without the consent of such holders, altered by such reorganization or readjustment.
The consolidation of the Company with, or the merger of the Company into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another corporation upon
the terms and conditions provided for in Article 10 hereof shall not be deemed a dissolution, winding-up, liquidation or reorganization
for the purposes of this Section 14.02 if such other corporation shall, as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions stated in Article 10 hereof. Nothing in this Section 14.02 shall apply to claims of, or payments to, the Trustee
under or pursuant to Article 7.
Section 14.03 Subrogation
of Securities.
Subject to the payment in full of all Senior Indebtedness
of the Company, the rights of the holders of the Securities shall be subrogated to the rights of the holders of Senior Indebtedness of
the Company to receive payments or distributions of cash, property or securities of the Company applicable to the Senior Indebtedness
of the Company until the principal of (and premium, if any) and interest on the Securities shall be paid in full; and, for the purposes
of such subrogation, no payments or distributions to the holders of the Senior Indebtedness of the Company of any cash, property or securities
to which the holders of the Securities or the Trustee would be entitled except for the provisions of this Article 14 to or for the benefit
of the holders of Senior Indebtedness of the Company by holders of the Securities or the Trustee, shall, as between the Company, its creditors
other than holders of Senior Indebtedness of the Company, and the holders of the Securities, be deemed to be a payment by the Company
to or on account of the Senior Indebtedness of the Company. It is understood that the provisions of this Article 13 are and are intended
solely for the purpose of defining the relative rights of the holders of the Securities, on the one hand, and the holders of the Senior
Indebtedness of the Company, on the other hand.
Nothing contained in this Article 14 or elsewhere
in this Indenture or in the Securities is intended to or shall impair, as between the Company, its creditors other than the holders of
its Senior Indebtedness, and the holders of the Securities, the obligation of the Company, which is absolute and unconditional, to pay
to the holders of the Securities the principal of (and premium, if any) and interest on the Securities as and when the same shall become
due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the holders of the Securities
and creditors of the Company other than the holders of its Senior Indebtedness, nor shall anything herein or therein prevent the Trustee
or the holder of any Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article 14 of the holders of Senior Indebtedness of the Company in respect of cash, property or securities
of the Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets of
the Company referred to in this Article 14, the Trustee, subject to the provisions of Article 7, and the holders of the Securities shall
be entitled to rely upon any order or decree made by any court of competent jurisdiction in which such dissolution, winding-up, liquidation
or reorganization proceedings are pending, or a certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent or other
Person making such payment or distribution, delivered to the Trustee or to the holders of the Securities, for the purpose of ascertaining
the Persons entitled to participate in such distribution, the holders of the Senior Indebtedness and other indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this
Article 14.
Section 14.04
Authorization by Securityholders. Each holder of a Security by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article
14 appoints the Trustee his attorney-in-fact for any and all such purposes.
Section 14.05
Notice to Trustee. The Company shall give promptly written notice to a Responsible Officer of the Trustee of
any fact known to the Company which would prohibit the making of any payment of monies to or by the Trustee in respect of the Securities
pursuant to the provisions of this Article 14. Notwithstanding the provisions of this Article 14 or any other provision of this Indenture,
the Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the making of any payment of monies
to or by the Trustee in respect of the Securities pursuant to the provisions of this Article 14, unless and until a Responsible Officer
of the Trustee shall have received written notice thereof at the Corporate Trust Office of the Trustee from the Company or a holder or
holders of Senior Indebtedness of the Company or from any trustee therefor; and before the receipt of any such written notice, the Trustee,
subject to the provisions of Article 7, shall be entitled in all respects to assume that no such facts exist; provided that if
on a date not fewer than three Business Days prior to the date upon which by the terms hereof any such monies may become payable for any
purpose (including, without limitation, the payment of the principal of (or premium, if any) or interest on any Security) the Trustee
shall not have received, with respect to such monies, the notice provided for in this Section 14.05, then, anything herein contained to
the contrary notwithstanding, the Trustee shall have full power and authority to receive such monies and to apply the same to the purpose
for which they were received, and shall not be affected by any notice to the contrary which may be received by it on or after such prior
date. Notwithstanding anything to the contrary hereinbefore set forth, nothing shall prevent any payment by the Company or the Trustee
to the Securityholders of monies in connection with a redemption of Securities if (i) notice of such redemption has been given in accordance
herewith prior to the receipt by the Trustee of written notice as aforesaid, and (ii) such notice of redemption is given not earlier than
60 days before the redemption date.
The Trustee conclusively shall be entitled to
rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Indebtedness of the Company (or
a trustee on behalf of such holder) to establish that such notice has been given by a holder of Senior Indebtedness of the Company or
a trustee on behalf of any such holder or holders. In the event that the Trustee determines in good faith that further evidence is required
with respect to the right of any Person as a holder of Senior Indebtedness of the Company to participate in any payment or distribution
pursuant to this Article 14, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Indebtedness of the Company held by such Person, the extent to which such Person is entitled to participate in
such payment or distribution and any other facts pertinent to the rights of such Person under this Article 14, and if such evidence is
not furnished the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive
such payment.
Section 14.06
Trustee’s Relation to Senior Indebtedness. The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article 14 in respect of any Senior Indebtedness of the Company at any time held by it, to the same extent
as any other holder of Senior Indebtedness of the Company and nothing elsewhere in this Indenture shall deprive the Trustee of any of
its rights as such holder.
With respect to the holders of Senior Indebtedness
of the Company, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth
in this Article 14, and no implied covenants or obligations with respect to the holders of Senior Indebtedness of the Company shall be
read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness
of the Company and the Trustee shall not be liable to any holder of Senior Indebtedness of the Company if it shall pay over or deliver
to holders of Securities, the Company or any other Person money or assets to which any holder of Senior Indebtedness of the Company shall
be entitled by virtue of this Article 14 or otherwise.
Section 14.07
No Impairment of Subordination. No right of any present or future holder of any Senior Indebtedness of the Company to
enforce subordination as herein provided shall at any time in any
way be prejudiced or impaired by any act or failure
to act on the part of the Company or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof which any such holder may have or otherwise
be charged with.
Section 14.08
Rights of Trustee. Nothing in this Article 14 shall apply to claims of or payments to, the Trustee pursuant to Article
7.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed all as of the day and year first above written.
IPOWER INC. |
|
|
By: |
|
Name: |
|
Title: |
|
|
[TRUSTEE], as Trustee |
|
|
By: |
|
Name: |
|
Title: |
|
CROSS-REFERENCE TABLE (1)
Section of Trust Indenture Act Of 1939, as Amended |
|
Section of Indenture |
310(a) |
|
7.09 |
310(b) |
|
7.08 |
|
|
7.10 |
310(c) |
|
Inapplicable |
311(a) |
|
7.13 |
311(b) |
|
7.13 |
311(c) |
|
Inapplicable |
312(a) |
|
5.01 |
|
|
5.02(a) |
312(b) |
|
5.02(c) |
312(c) |
|
5.02(c) |
313(a) |
|
5.04(a) |
313(b) |
|
5.04(b) |
313(c) |
|
5.04(a) |
|
|
5.04(b) |
313(d) |
|
5.04(c) |
314(a) |
|
5.03 |
|
|
13.12 |
314(b) |
|
Inapplicable |
314(c) |
|
13.07(a) |
314(d) |
|
Inapplicable |
314(e) |
|
13.07(b) |
Section of Trust Indenture Act Of 1939, as Amended |
|
Section of Indenture |
314(f) |
|
Inapplicable |
315(a) |
|
7.01(a) |
|
|
7.01(b) |
315(b) |
|
7.14 |
315(c) |
|
7.01 |
315(d) |
|
7.01(b) |
315(e) |
|
6.07 |
316(a) |
|
6.06 |
|
|
8.04 |
316(b) |
|
6.04 |
316(c) |
|
8.01 |
317(a) |
|
6.02 |
317(b) |
|
4.03 |
318(a) |
|
13.09 |
(1) |
This Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions. |
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