As filed with the U.S. Securities and Exchange
Commission on January 23, 2024
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
SILO
PHARMA, INC.
(Exact
name of Registrant as specified in its charter)
Nevada |
|
27-3046338 |
(State or other jurisdiction of |
|
(I.R.S. Employer |
incorporation or organization) |
|
Identification Number) |
677
N. Washington Boulevard
Sarasota,
Florida 34236
(718)
400-9031
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Eric
Weisblum
Chief
Executive Officer
Silo
Pharma, Inc.
677
N. Washington Boulevard
Sarasota,
Florida 34236
(718)
400-9031
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Richard
A. Friedman, Esq.
Sheppard,
Mullin, Richter & Hampton LLP
30 Rockefeller Plaza
New York, NY 10112
Telephone: (212) 653-8700
Approximate
date of commencement of proposed sale to the public: From time to time, after the effective date of this registration statement.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following
box. ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large
accelerated filer ☐ |
Accelerated
filer ☐ |
Non-accelerated
filer ☒ |
Smaller
reporting company ☒ |
Emerging
growth company ☐ |
|
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of 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 that specifically states that this Registration Statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until 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 or accept an offer to buy these securities
until the registration statement filed with the U.S. Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities, and we are not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
PRELIMINARY
PROSPECTUS
Subject to completion,
dated January 23, 2024
SILO
PHARMA, INC.
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
Units
We
may offer and sell, from time to time in one or more offerings, any combination of common stock, preferred stock, debt securities, warrants
to purchase common stock, preferred stock or debt securities, or any combination of the foregoing, either individually or as units comprised
of one or more of the other securities, having an aggregate initial offering price not exceeding $25,000,000.
This
prospectus provides a general description of the securities we may offer. Each time we sell a particular class or series of securities,
we will provide specific terms of the securities offered in a supplement to this prospectus. The prospectus supplement and any related
free writing prospectus may also add, update or change information contained in this prospectus. We may also authorize one or more free
writing prospectuses to be provided to you in connection with these offerings. You should read carefully this prospectus, the applicable
prospectus supplement and any related free writing prospectus, as well as any documents incorporated by reference herein or therein before
you invest in any of our securities.
The
specific terms of any securities to be offered, and the specific manner in which they may be offered, will be described in one or more
supplements to this prospectus. This prospectus may not be used to consummate sales of any of these securities unless it is accompanied
by a prospectus supplement. Before investing, you should carefully read this prospectus and any related prospectus supplement.
Our common stock is presently
listed on The Nasdaq Capital Market under the symbol “SILO.” On January 22, 2024, the last reported sale price of our common
stock was $1.40 per share. The applicable prospectus supplement will contain information, where applicable, as to any other listing
on The Nasdaq Capital Market or any securities market or other exchange of the securities, if any, covered by the prospectus supplement.
Prospective purchasers of our securities are urged to obtain current information as to the market prices of our securities, where applicable.
These
securities may be sold directly by us, through dealers or agents designated from time to time, to or through underwriters, dealers, or
through a combination of these methods on a continuous or delayed basis. 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 price to the public of such securities and the
net proceeds we expect to receive from any such sale will also be included in a prospectus supplement.
Investing
in our securities involves various risks. See “Risk Factors” contained herein for more information on these risks.
Additional risks will be described in the related prospectus supplements under the heading “Risk Factors.” You should
review that section of the related prospectus supplements for a discussion of matters that investors in our securities should consider.
Neither
the U.S. Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities, or passed
upon the adequacy or accuracy of this prospectus or any accompanying prospectus supplement. Any representation to the contrary is a criminal
offense.
The
date of this prospectus is ,
2024.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the U.S. Securities and Exchange Commission (“SEC”) using
a “shelf” registration process. Under this shelf registration statement, we may sell from time to time in one or more offerings
of common stock and preferred stock, various series of debt securities and/or warrants to purchase any of such securities, either individually
or as units comprised of a combination of one or more of the other securities in one or more offerings up to a total dollar amount of
$25,000,000. This prospectus provides you with a general description of the securities we may offer. Each time we sell any type or series
of securities under this prospectus, we will provide a prospectus supplement that will contain more specific information about the terms
of that offering.
This
prospectus does not contain all of the information included in the registration statement. For a more complete understanding of the offering
of the securities, you should refer to the registration statement, including its exhibits. We may add, update or change, in a prospectus
supplement or free writing prospectus, any of the information contained in this prospectus or in the documents we have incorporated by
reference into this prospectus. We may also authorize one or more free writing prospectuses to be provided to you that may contain material
information relating to these offerings. This prospectus, together with the applicable prospectus supplement, any related free writing
prospectus and the documents incorporated by reference into this prospectus and the applicable prospectus supplement, will include all
material information relating to the applicable offering. You should carefully read both this prospectus and the applicable prospectus
supplement and any related free writing prospectus, together with the additional information described under “Where You Can
Find More Information,” before buying any of the securities being offered.
We
have not authorized any dealer, agent or other person to give any information or to make any representation other than those contained
or incorporated by reference in this prospectus, any accompanying prospectus supplement or any related free writing prospectus that we
may authorize to be provided to you. You must not rely upon any information or representation not contained or incorporated by reference
in this prospectus or an accompanying prospectus supplement, or any related free writing prospectus that we may authorize to be provided
to you. This prospectus, the accompanying prospectus supplement and any related free writing prospectus, if any, do not constitute an
offer to sell or the solicitation of an offer to buy any securities other than the registered securities to which they relate, nor do
this prospectus, the accompanying prospectus supplement or any related free writing prospectus, if any, constitute an offer to sell or
the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation
in such jurisdiction. You should not assume that the information contained in this prospectus, any applicable prospectus supplement or
any related free writing prospectus is accurate on any date subsequent to the date set forth on the front of the document or that any
information we have incorporated by reference is correct on any date subsequent to the date of the document incorporated by reference
(as our business, financial condition, results of operations and prospects may have changed since that date), even though this prospectus,
any applicable prospectus supplement or any related free writing prospectus is delivered or securities are sold on a later date.
We
further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document
that is incorporated by reference in this prospectus were made solely for the benefit of the parties to such agreement, including, in
some cases, for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation,
warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly,
such representations, warranties and covenants should not be relied on as accurately representing the current state of our affairs.
This
prospectus may not be used to consummate sales of our securities, unless it is accompanied by a prospectus supplement. To the extent
there are inconsistencies between any prospectus supplement, this prospectus and any documents incorporated by reference, the document
with the most recent date will control.
As
permitted by the rules and regulations of the SEC, the registration statement, of which this prospectus forms a part, includes additional
information not contained in this prospectus. You may read the registration statement and the other reports we file with the SEC at the
SEC’s web site or at the SEC’s offices described below under the heading “Where You Can Find More Information.”
Company
References
In
this prospectus “the Company,” “we,” “us,” and “our” refer to Silo Pharma, Inc., a Nevada
corporation, and its subsidiary, unless the context otherwise requires.
SUMMARY
Overview
We
are a developmental stage biopharmaceutical company focused on merging traditional therapeutics with psychedelic research. We are committed
to developing innovative solutions to address a variety of underserved conditions. In these uncertain times, the mental health of
the nation and beyond is being put to the test. More than ever, creative new therapies are needed to address the health challenges of
today. Combining our resources with world-class medical research partners, we hope to make significant advances in the medical and psychedelic
space.
Rare
Disease Therapeutics
We
seek to acquire and/or develop intellectual property or technology rights from leading universities and researchers to treat rare diseases,
including the use of psychedelic drugs, such as psilocybin, and the potential benefits they may have in certain cases involving depression,
mental health issues and neurological disorders. We are focused on merging traditional therapeutics with psychedelic research for
people suffering from indications such as depression, post-traumatic stress disorder (“PTSD”), Parkinson’s, and other
rare neurological disorders. Our mission is to identify assets to license and fund the research which we believe will be transformative
to the well-being of patients and the health care industry.
Psilocybin
is considered a serotonergic hallucinogen and is an active ingredient in some species of mushrooms. Recent industry studies using psychedelics,
such as psilocybin, have been promising, and we believe there is a large unmet need with many people suffering from depression, mental
health issues and neurological disorders. While classified as a Schedule I substance under the Controlled Substances Act (“CSA”),
there is an accumulating body of evidence that psilocybin may have beneficial effects on depression and other mental health conditions.
Therefore, the U.S. Food and Drug Administration (“FDA”) and U.S. Drug Enforcement Agency (“DEA”) have permitted
the use of psilocybin in clinical studies for the treatment of a range of psychiatric conditions.
The
potential of psilocybin therapy in mental health conditions has been demonstrated in a number of academic-sponsored studies over the
last decade. In these early studies, it was observed that psilocybin therapy provided rapid reductions in depression symptoms after a
single high dose, with antidepressant effects lasting for up to at least six months for a number of patients. These studies assessed
symptoms related to depression and anxiety through a number of widely used and validated scales. The data generated by these studies
suggest that psilocybin is generally well-tolerated and may have the potential to treat depression when administered with psychological
support.
We
have engaged in discussions with a number of world-renowned educational institutions and advisors regarding potential opportunities and
have formed a scientific advisory board that is intended to help advise management regarding potential acquisition and development of
products.
In
addition, as more fully described below, we have entered into a license agreement with the University of Maryland, Baltimore, and have
entered into a joint venture with Zylö Therapeutics, Inc., with respect to certain intellectual property and technology that may
be used for targeted delivery of potential novel treatments. We have also entered into a sponsored research agreement with Columbia University
pursuant to which we have been granted an option to license certain patents and inventions relating to the treatment of Alzheimer’s
disease and stress-induced affective disorders using Ketamine in combination with certain other compounds.
We
plan to actively pursue the acquisition and/or development of intellectual property or technology rights to treat rare diseases, and
to ultimately expand our business to focus on this new line of business.
Our
Vendor License Agreements
Vendor
License Agreement with the University of Maryland, Baltimore for CNS Homing Peptide
On
February 12, 2021, we entered into a Master License Agreement (the “UMB License Agreement”) with the University of Maryland,
Baltimore (“UMB”) pursuant to which UMB granted us an exclusive, worldwide, sublicensable, royalty-bearing license to certain
intellectual property (i) to make, have made, use, sell, offer to sell, and import certain licensed products and (ii) to use the invention
titled, “Central nervous system-homing peptides in vivo and their use for the investigation and treatment of multiple sclerosis
and other neuroinflammatory pathology” (the “Invention”) and UMB’s confidential information to develop and perform
certain licensed processes for the therapeutic treatment of neuroinflammatory disease. The term of the License Agreement shall commence
on the UMB Effective Date and shall continue until the latest of (i) ten years from the date of First Commercial Sale (as defined in
the Sublicense Agreement) of the Licensed Product in such country and (ii) the date of expiration of the last to expire claim of the
Patent Rights (as defined in the UMB License Agreement) covering such Licensed Product in such country, or (iii) the expiration of data
protection, new chemical entity, orphan drug exclusivity, regulatory exclusivity, or other legally enforceable market exclusivity, if
applicable, unless terminated earlier pursuant to the terms of the agreement. Pursuant to the UMB License Agreement, we agreed to pay
UMB (i) a license fee of $75,000, (ii) certain event-based milestone payments, (iii) royalty payments, depending on net revenues, (iv)
minimum royalty payments, and (v) a tiered percentage of sublicense income. The UMB License Agreement will remain in effect until the
later of: (a) the last patent covered under the UMB License Agreement expires, (b) the expiration of data protection, new chemical entity,
orphan drug exclusivity, regulatory exclusivity, or other legally enforceable market exclusivity, if applicable, or (c) ten years after
the first commercial sale of a licensed product in that country, unless earlier terminated in accordance with the provisions of the UMB
License Agreement. The term of the UMB License Agreement shall expire 15 years after the effective date in which (a) there were never
any patent rights, (b) there was never any data protection, new chemical entity, orphan drug exclusivity, regulatory exclusivity, or
other legally enforceable market exclusivity or (c) there was never a first commercial sale of a licensed product.
As
described below, we have entered into an investigator sponsored research agreement with UMB related to a clinical study to examine a
novel peptide-guided drug delivery approach for the treatment of Multiple Sclerosis.
Commercial
Evaluation License and Option Agreement with UMB for Joint Homing Peptide
Effective
as of February 26, 2021, we, through our wholly-subsidiary, Silo Pharma, Inc., and University of Maryland, Baltimore (“UMB”),
entered into a commercial evaluation license and option agreement (“License Agreement”), under which we were granted an exclusive,
non-sublicensable, non-transferable license to with respect to the exploration of the potential use of joint-homing peptides for use
in the investigation and treatment of arthritogenic processes. Under the License Agreement, we were also granted an exclusive option
to negotiate and obtain an exclusive, sublicensable, royalty-bearing license (“Exclusive Option”) with respect to the subject
technology. The License Agreement had a term of six months from the effective date. Both parties could have terminated the License Agreement
within thirty days by giving a written notice.
On
July 6, 2021, we entered into a First Amendment Agreement (the “Amended License Agreement”) with UMB to extend the term of
the original License Agreement by an additional six months such that the Amended License Agreement was effective until February 25, 2022.
However, if we exercise the Exclusive Option, the License Agreement shall expire at the end of the negotiation period (as defined in
the License Agreement) or upon execution of a master license agreement, whichever occurs first. We paid a license fee of $10,000 to UMB
in March 2021 pursuant to the License Agreement, which was expensed, since we could not conclude that such costs would be recoverable
for this early-stage venture.
On
January 28, 2022, we entered into a second amendment to the License Agreement with UMB dated February 26, 2021 (the “Second Amendment”).
The Second Amendment extended the term of the License Agreement until December 31, 2022. However, if we exercise the Exclusive Option,
the License Agreement shall expire at the end of the negotiation period (as defined in the License Agreement) or upon execution of a
master license agreement, whichever occurs first.
On
June 22, 2022, we entered into a third amendment to the License Agreement with UMB dated February 26, 2021 (the “Third Amendment”)
under which UMB agreed, to expand the scope of the license granted in the CELA to add additional Patent Rights with respect to an invention
generally known as “Peptide-Targeted Liposomal Delivery for Treatment Diagnosis, and Imaging of Diseases and Disorders.”
On
December 16, 2022, we entered into a fourth amendment to License Agreement with UMB dated February 26, 2021 (the “Fourth Amendment”)
to extend the term of the License Agreement until March 31, 2023. In addition, the parties agreed in the Fourth Amendment to allow us
to extend the term of the License Agreement to June 30, 2023 by paying UMB a fee of $1,000 on or before February 28, 2022. This fee was
paid and thus the term of the License Agreement was extended to June 30, 2023.
On
June 28, 2023, we entered into a fifth amendment to License Agreement with UMB dated February 26, 2021 (the “Fifth Amendment”)
to extend the term of the License Agreement until September 30, 2023. We may, at our option, extend this Agreement until December 31,
2023, by providing written notice to University on or before August 31, 2023, and by paying an additional license fee of $2,500. This
fee was paid and the term of the License Agreement was extended to December 31, 2023.
Joint
Venture Agreement with Zylö Therapeutics, Inc. for Z-pod™ Technology
On
April 22, 2021, we entered into a Joint Venture Agreement with Zylö Therapeutics, Inc. (“ZTI”) pursuant to which we
agreed to form a joint venture entity, to be named Ketamine Joint Venture, LLC, to, among other things, focus on the clinical development
of ketamine using ZTI’s Z-pod™ technology. Pursuant to the Joint Venture Agreement, we shall act as the manager of the Joint
Venture. The Venture shall terminate if the development program does not meet certain specifications and milestones as set forth in the
Joint Venture Agreement within 30 days of the date set forth in the Joint Venture Agreement. Notwithstanding the foregoing, the Manager
may, in its sole discretion, terminate the Venture at any time.
Pursuant
to the terms of the Joint Venture Agreement, (A) we shall contribute (1) $225,000 and (2) our expertise and the expertise of its
science advisory board and (B) ZTI shall contribute (1) certain rights to certain of its patented technology as set forth in the JV Agreement,
(2) a license to the know-how and trade secrets with respect to its Z-pod™ technology for the loading and release of ketamine,
(3) ketamine to be used for clinical purposes, (4) reasonable use of its facilities and permits and (5) its expertise and know-how. Pursuant
to the Joint Venture Agreement, 51% of the interest in the Joint Venture shall initially be owned by us and 49% of the interest in the
Joint Venture shall initially be owned by ZTI, subject to adjustment in the event of additional contributions by either party. Notwithstanding
the foregoing, in no event shall either party own more than 60% of the interest in the Joint Venture. As of the date of this Prospectus,
the joint venture entity has not been formed yet.
Furthermore,
pursuant to the terms of the JV Agreement, ZTI shall grant the Joint Venture a sublicense pursuant to its license agreement (the “License
Agreement”) with Albert Einstein College of Medicine dated November 27, 2017, in the event that we or a third party makes a request
indicating that the patented technology (the “Patented Technology”) licensed to ZTI pursuant to the License Agreement is
needed to advance the development of the Joint Venture or it is contemplated or determined that the Patented Technology will be sold.
Furthermore, pursuant to the JV Agreement, ZTI granted us an exclusive option to enter into a separate joint venture for the clinical
development of psilocybin using ZTI’s Z-pod™ technology on the same terms and conditions set forth in the JV Agreement, which
option expired 24 months after the JV Effective Date.
Our
Investigator-Sponsored Study Agreements
Sponsored
Research Agreement with Columbia University for the Study of Ketamine in Combination with Other Drugs for Treatment of Alzheimer’s
and Depression Disorders
On
October 1, 2021, we entered into a sponsored research agreement with Columbia University (“Columbia”) pursuant to which Columbia
shall conduct two different studies related to all uses of Ketamine or its metabolites in combination with Prucalopride, one of which
is related to Alzheimer’s and the other of which is related to Depression, PTSD and Stress Projects. In addition, Company has been
granted an option to license certain assets currently under development, including Alzheimer’s disease. The term of the option
will commence on the effective date of this agreement and will expire upon the earlier of (i) 90 days after the date of our receipt of
a final research report for each specific research proposal as defined in the agreement or (ii) termination of the research. If we elect
to exercise the option, both parties will commence negotiation of a license agreement and will execute a license agreement no later than
3 months after the date of the exercise of the option. Columbia University and we will work towards developing a therapeutic treatment
for patients suffering from Alzheimer’s disease to posttraumatic stress disorder. During a one-year period from the date of this
agreement, we shall pay a total of $1,436,082 to Columbia University for the support of the research according to the payment schedule
as follows: (i) 30% at signing, (ii) 30% at four and half months after the start of the project, (iii) 30% at nine months after the start
of the project and, (iv) 10% at completion of the project. On October 13, 2022, we entered into an amendment of the sponsored research
agreement pursuant to which the parties agreed to extend the payment schedule until March 31, 2024. We paid the first payment of $430,825
in November 2021 and the second payment of $430,825 in July 2022. On October 13, 2022, we entered into an amendment to the Columbia Agreement
(the “Columbia Amendment”), pursuant to which the parties agreed to extend the payment schedule, whereby the third payment
of $430,825 was due in March 2023. In August 2023, we paid $100,000 of this balance and $330,825 of such payment remains unpaid as of
September 30, 2023, which is included in accounts payable on the accompanying unaudited consolidated balance sheet. The remaining payment
of $143,607 is due upon completion. As of September 30, 2023, we estimate that this research project is approximately 90% complete.
Sponsored
Research Agreement with University of Maryland, Baltimore for the Study of Targeted liposomal drug delivery for rheumatoid arthritis
On
July 6, 2021, we entered into a sponsored research agreement (the “July 2021 Sponsored Research Agreement”) with UMB pursuant
to which UMB shall evaluate the pharmacokinetics of dexamethasone delivered to arthritic rats via liposome. The research pursuant
to the July 2021 Sponsored Research Agreement commenced on September 1, 2021 and will continue until the substantial completion thereof,
subject to renewal upon written consent of the parties with a project timeline of twelve months. The July 2021 Sponsored Research Agreement
may be terminated by either party upon 30 days’ prior written notice to the other party. In addition, if either party commits any
material breach of or defaults with respect to any terms or conditions of the July 2021 Sponsored Research Agreement and fails to remedy
such default or breach within 10 business days after written notice from the other party, the party giving notice may terminate the July
2021 Sponsored Research Agreement as of the date of receipt of such notice by the other party. If we terminate the July 2021 Sponsored
Research Agreement for any reason other than an uncured material breach by UMB, we shall relinquish any and all rights it may have in
the Results (as defined in the July 2021 Sponsored Research Agreement) to UMB. In addition, if the July 2021 Sponsored Research Agreement
is terminated early, we, among other things, will pay all costs incurred and accrued by UMB as of the date of termination. Pursuant to
the terms of the July 2021 Sponsored Research Agreement, UMB granted us an option (the “Option”) to negotiate and obtain
an exclusive license to any UMB Arising IP (as defined in the July 2021 Sponsored Research Agreement) and UMB’s rights in any Joint
Arising IP (as defined in the July 2021 Sponsored Research Agreement) (collectively, the “UMB IP”). We may exercise the Option
by giving UMB written notice within 60 days after it receives notice from UMB of the UMB IP. We shall pay total fees of $276,285 as set
forth in the July 2021 Sponsored Research Agreement. We paid the first payment of $92,095 on September 1, 2021 and on August 31, 2022,
we paid the second payment of $92,095. On September 30, 2023 and December 31, 2022, we owed UMB $92,095 which was included in accounts
payable on the accompanying unaudited consolidated balance sheets.
Sponsored
Research Agreement with The Regents of the University of California for the Effect of Psilocybin on Inflammation in the Blood
On
June 1, 2021, we entered into a sponsored research agreement (“Sponsored Research Agreement”) with The Regents of the University
of California, on behalf of its San Francisco Campus (“UCSF”) pursuant to which UCSF shall conduct a study to examine psilocybin’s
effect on inflammatory activity in humans to accelerate its implementation as a potential treatment for Parkinson’s Disease, chronic
pain, and bipolar disorder. The purpose of this is to show what effect psilocybin has on inflammation in the blood. We believe that this
study will help support the UMB homing peptide study. Pursuant to the Agreement, we shall pay UCSF a total fee of $342,850 to conduct
the research over the two-year period. The Agreement shall be effective for a period of two years from the effective date, subject to
renewal or earlier termination as set forth in the Sponsored Research Agreement.
Investigator-Sponsored
Study Agreement with UMB for CNS Homing Peptide
On
January 5, 2021, we entered into an investigator-sponsored study agreement with UMB. The research project is a clinical study to examine
a novel peptide-guided drug delivery approach for the treatment of Multiple Sclerosis (“MS”). More specifically, the study
is designed to evaluate (1) whether MS-1-displaying liposomes can effectively deliver dexamethasone to the central nervous system and
(2) whether MS-1-displaying liposomes are superior to plain liposomes, also known as free drug, in inhibiting the relapses and progression
of Experimental Autoimmune Encephalomyelitis. Pursuant to the agreement, the research commenced on March 1, 2021 and will continue until
substantial completion, subject to renewal upon mutual written consent of the parties. The total cost under the investigator-sponsored
study agreement shall not exceed $81,474 which is payable in two equal installments of $40,737 upon execution of the Sponsored Study
Agreement and $40,737 upon completion of the project with an estimated project timeline of nine months. We paid $40,737 on January 13,
2021. This project is postponed until further notice and the second payment is not due.
Other
License Agreements
Customer
Patent License Agreement with Aikido Pharma Inc.
On
January 5, 2021, we entered into a Patent License Agreement (the “Aikido License Agreement”) with our wholly-owned subsidiary,
Silo Pharma, Inc., and Aikido Pharma Inc. (“Aikido”) pursuant to which we granted Aikido an exclusive, worldwide, sublicensable,
royalty-bearing license to certain intellectual property (i) to make, have made, use, provide, import, export, lease, distribute, sell,
offer for sale, develop and advertise certain licensed products and (ii) to develop and perform certain licensed processes for the treatment
of cancer and symptoms caused by cancer. The Aikido License Agreement relates to the rights which we had obtained under the UMB Option
Agreement. Pursuant to the Aikido License Agreement, we agreed that if we exercised the UMB Option, we would grant Aikido a non-exclusive
sublicense to certain UMB patent rights in the field of neuroinflammatory diseases occurring in patients diagnosed with cancer. The UMB
Option was exercised on January 13, 2021. Accordingly, on April 6, 2021, we entered into a sublicense agreement with Aikido pursuant
to which we granted Aikido a worldwide exclusive sublicense to our licensed patents under the UMB License Agreement (see below “Sublicense with
Aikido Pharma Inc.”).
Customer
Sublicense Agreement with Aikido Pharma Inc.
On
April 6, 2021 (“Effective Date”), we entered into a sublicense agreement (the “Sublicense Agreement”) with Aikido
pursuant to which we granted Aikido an exclusive worldwide sublicense to (i) make, have made, use, sell, offer to sell and import the
Licensed Products (as defined below) and (ii) in connection therewith to (A) use the Invention that was sublicensed to us pursuant to
the UMB License Agreement and (B) practice certain patent rights as set forth in the Sublicense Agreement (the “Patent Rights”)
for the therapeutic treatment of neuroinflammatory disease in cancer patients. “Licensed Products” means any product, service,
or process, the development, making, use, offer for sale, sale, importation, or providing of which: (i) is covered by one or more claims
of the Patent Rights; or (ii) contains, comprises, utilizes, incorporates, or is derived from the Invention or any technology disclosed
in the Patent Rights. Pursuant to the Sublicense Agreement, Aikido shall agree to pay us (i) an upfront license fee of $50,000, (ii) the
same sales-based royalty payments that we are subject to under the UMB License Agreement and (iii) total milestone payments of up to
$1.9 million. The Sublicense Agreement shall continue on a Licensed Product-by-Licensed Product and country-by-country basis until the
later of (i) the date of expiration of the last to expire claim of the Patent Rights covering such Licensed Product in such country,
(ii) the expiration of data protection, new chemical entity, orphan drug exclusivity, regulatory exclusivity or other legally enforceable
market exclusivity, if applicable and (iii) 10 years after the first commercial sale of a Licensed Product in that country, unless terminated
earlier pursuant to the terms of the Sublicense Agreement. Furthermore, the Sublicense Agreement shall expire 15 years after the Effective
Date with respect to any country in which (i) there were never any Patent Rights, (ii) there was never any data protection, new chemical
entity, orphan drug exclusivity, regulatory exclusivity or other legally enforceable market exclusivity with respect to a Licensed Product
and (ii) there was never a commercial sale of a Licensed Product, unless such agreement is earlier terminated pursuant to its terms.
We collected the upfront license fee of $50,000 in April 2021.
Risks
Associated with Our Business
Our
ability to execute on our business strategy is subject to a number of risks, which are discussed more fully in the section titled “Risk
Factors.” Investors should carefully consider these risks before making an investment in our common stock. These risks include,
among others, the following:
Risk
Related to our Financial Position and Need for Capital
| ● | We
have only a limited history upon which an evaluation of our prospects and future performance can be made and have no history of profitable
operations. |
| ● | We
will require additional financing in the future to fund our operations, and. |
| ● | Raising
additional capital may cause dilution to holders of our stockholders, restrict our operations or require us to relinquish certain rights. |
Risk
Related to Product Development, Regulatory Approval, Manufacturing and Commercialization
| ● | Clinical
drug development is a lengthy and expensive process with uncertain timelines and uncertain outcomes. If clinical trials of any future
therapeutic candidates are prolonged or delayed, we or our current or future collaborators may be unable to obtain required regulatory
approvals, and therefore we will be unable to commercialize our future therapeutic candidates on a timely basis or at all, which will
adversely affect our business. |
| ● | Any
therapeutic candidates we may develop in the future may be subject to controlled substance laws and regulations in the territories where
the product will be marketed, and failure to comply with these laws and regulations, or the cost of compliance with these laws and regulations,
may adversely affect the results of our business operations and our financial condition. |
| ● | Psilocybin
and psilocin are listed as Schedule I controlled substances under the Controlled Substances Act in the U.S., and similar controlled substance
legislation in other countries and any significant breaches in our compliance with these laws and regulations, or changes in the laws
and regulations may result in interruptions to our development activity or business continuity |
| ● | Our
product candidates may contain controlled substances, the use of which may generate public controversy. Adverse publicity or public perception
regarding psilocybin or our current or future investigational therapies using psilocybin may negatively influence the success of these
therapies. |
| ● | Even
if any of our future therapeutic candidates obtain regulatory approval, we will be subject to ongoing obligations and continued regulatory
review, which may result in significant additional expense or penalties if we fail to comply with regulatory requirements or experience
unanticipated problems with any of our future therapeutic candidates. |
| ● | We
will depend on enrollment of patients in our clinical trials for our future therapeutic candidates. If we are unable to enroll patients
in our clinical trials, our research and development efforts and business, financial condition and results of operations could be materially
adversely affected. |
| ● | We
have never commercialized a therapeutic candidate before and may lack the necessary expertise, personnel and resources to successfully
commercialize our therapies on our own or with suitable collaborators. |
| ● | The
future commercial success of our future therapeutic candidates will depend on the degree of market access and acceptance of our potential
therapies among healthcare professionals, patients, healthcare payors, health technology assessment bodies and the medical community
at large. |
| ● | We
may become exposed to costly and damaging liability claims, and our product liability insurance may not cover all damages from such claims. |
| ● | Enacted
and future legislation may increase the difficulty and cost for us to obtain marketing approval of and commercialize any of our future
therapeutic candidates and could have a material adverse effect on our business. |
| ● | Our
business operations and current and future relationships with investigators, health care professionals, consultants, third-party payors
and customers may be subject, directly or indirectly, to U.S. federal and state healthcare fraud and abuse laws, false claims laws, health
information privacy and security laws, other healthcare laws and regulations and other foreign privacy and security laws. If we are unable
to comply, or have not fully complied, with such laws, we could face substantial penalties. |
Risk
Relating to our Intellectual Property Rights
| ● | The
failure to obtain or maintain patents, licensing agreements and other intellectual property could materially impact our ability to compete
effectively. |
| ● | If
we are unable to obtain and maintain patent protection for our products, or if the scope of the patent protection obtained is not sufficiently
broad, competitors could develop and commercialize products similar or identical to ours, and our ability to successfully commercialize
our products could be impaired. |
| ● | If
we fail to comply with our obligations in the agreements under which we may license intellectual property rights from third parties or
otherwise experience disruptions to our business relationships with our licensors, we could lose rights that are important to our business. |
Risks
Related to our Securities
| ● | We
have never paid cash dividends and have no plans to pay cash dividends in the future. |
| ● | Our
compliance with complicated U.S. regulations concerning corporate governance and public disclosure is expensive and diverts management’s
attention from our core business, which could adversely affect our business, results of operations, and financial condition. |
| ● | Market
and economic conditions may negatively impact our business, financial condition and share price. |
| ● | Future
sales and issuances of our securities could result in additional dilution of the percentage ownership of our shareholders and could cause
our share price to fall. |
| ● | Failure
to maintain effective internal control over our financial reporting in accordance with Section 404 of the Sarbanes-Oxley Act could cause
our financial reports to be inaccurate.. |
| ● | Nasdaq
Capital Market may subsequently delist our common stock if we fail to comply with ongoing listing standards. |
Corporate
History and Information
We
were incorporated as in the State of New York on July 13, 2010. On January 24, 2013, we changed our state of incorporation from New York
to Delaware. On December 19, 2023, we changed our state of incorporation from Delaware to Nevada. Our principal executive offices are
located at 677 N Washington Boulevard, Sarasota, Florida 34236. and our telephone number is (718) 400-9031. Our website address is www.silopharma.com.
The information contained on our website is not incorporated by reference into this prospectus, and you should not consider any information
contained on, or that can be accessed through, our website as part of this prospectus or in deciding whether to purchase our securities.
The
Securities We May Offer
We
may offer shares of our common stock and preferred stock, various series of debt securities and warrants to purchase any of such securities,
either individually or in units, from time to time under this prospectus, together with any applicable prospectus supplement and related
free writing prospectus, at prices and on terms to be determined by market conditions at the time of offering. If we issue any debt securities
at a discount from their original stated principal amount, then, for purposes of calculating the total dollar amount of all securities
issued under this prospectus, we will treat the initial offering price of the debt securities as the total original principal amount
of the debt securities. Each time we offer securities under this prospectus, we will provide offerees with a prospectus supplement that
will describe the specific amounts, prices and other important terms of the securities being offered, including, to the extent applicable:
| ● | designation
or classification; |
| ● | aggregate principal amount or aggregate offering price; |
| ● | maturity, if applicable; |
| ● | original issue discount, if any; |
| ● | rates and times of payment of interest or dividends, if any; |
| ● | redemption, conversion, exchange or sinking fund terms, if
any; |
| ● | conversion or exchange prices or rates, if any, and, if applicable,
any provisions for changes to or adjustments in the conversion or exchange prices or rates and in the securities or other property receivable
upon conversion or exchange; |
| ● | restrictive covenants, if any; |
| ● | voting or other rights, if any; and |
| ● | important United States federal income tax considerations. |
A 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 in documents we have incorporated by reference. However, no prospectus supplement or free writing prospectus will
offer a security that is not registered and described in this prospectus at the time of the effectiveness of the registration statement
of which this prospectus is a part.
We may sell the securities
to or through underwriters, dealers or agents or directly to purchasers. We, as well as any agents acting on our behalf, reserve the
sole right to accept and to reject in whole or in part any proposed purchase of securities. Each prospectus supplement will set forth
the names of any underwriters, dealers or agents involved in the sale of securities described in that prospectus supplement and any applicable
fee, commission or discount arrangements with them, details regarding any over-allotment option granted to them, and net proceeds to
us. The following is a summary of the securities we may offer with this prospectus.
Common Stock
We
currently have authorized 100,000,000 shares of common stock, par value $0.0001 per share. As of January 23, 2024, 2,886,001 shares of
our common stock were outstanding (273,095 shares held in treasury). We may offer shares of our common stock either alone or underlying
other registered securities convertible into or exercisable for our common stock. Holders of our common stock are entitled to such dividends
as our board of directors (the “Board of Directors” or “Board”) may declare from time to time out of legally
available funds, subject to the preferential rights of the holders of any shares of our preferred stock that are outstanding or that
we may issue in the future. Currently, we do not pay any dividends on our common stock. Each holder of our common stock is entitled to
one vote per share held on all matters submitted to a vote of our shareholders. In this prospectus, we provide a general description
of, among other things, the rights and restrictions that apply to holders of our common stock.
Preferred Stock
We currently have authorized
5,000,000 shares of preferred stock, par value $0.0001, none of which are issued and outstanding.
Any authorized and undesignated
shares of preferred stock may be issued from time to time in one or more series pursuant to a resolution or resolutions providing for
such issue duly adopted by our Board of Directors (authority to do so being hereby expressly vested in the Board of Directors). The Board
of Directors is further authorized, subject to limitations prescribed by law, to fix by resolution or resolutions the designations, powers,
preferences and rights, and the qualifications, limitations or restrictions thereof, of any wholly unissued series of preferred stock,
including, without limitation, authority to fix by resolution or resolutions the dividend rights, dividend rate, conversion rights, voting
rights, rights and terms of redemption (including sinking fund provisions), redemption price or prices, and liquidation preferences of
any such series, and the number of shares constituting any such series and the designation thereof, or any of the foregoing.
The rights, preferences, privileges,
and restrictions granted to or imposed upon any series of preferred stock that we offer and sell under this prospectus and applicable
prospectus supplements will be set forth in a certificate of designation relating to the series. We will incorporate by reference into
the registration statement of which this prospectus is a part the form of any certificate of designation that describes the terms of the
series of preferred stock we are offering before the issuance of shares of that series of preferred stock. You should read any prospectus
supplement and any free writing prospectus that we may authorize to be provided to you related to the series of preferred stock being
offered, as well as the complete certificate of designation that contains the terms of the applicable series of preferred stock.
Debt
Securities
We
may offer general debt obligations, which may be secured or unsecured, senior or subordinated, and convertible into shares of our common
stock or preferred stock. In this prospectus, we refer to the senior debt securities and the subordinated debt securities together as
the “debt securities.” We may issue debt securities under a note purchase agreement or under an indenture to be entered between
us and a trustee. The indentures do not limit the amount of securities that may be issued under them and provide that debt securities
may be issued in one or more series. The senior debt securities will have the same rank as all of our other indebtedness that is not
subordinated. The subordinated debt securities will be subordinated to our senior debt on terms set forth in the applicable prospectus
supplement. In addition, the subordinated debt securities will be effectively subordinated to creditors and preferred shareholders of
our subsidiaries. Our Board of Directors will determine the terms of each series of debt securities being offered. This prospectus contains
only general terms and provisions of the debt securities. The applicable prospectus supplement will describe the particular terms of
the debt securities offered thereby. You should read any prospectus supplement and any free writing prospectus that we may authorize
to be provided to you related to the series of debt securities being offered, as well as the complete note agreements and/or indentures
that contain the terms of the debt securities. The forms of senior and subordinated indentures have been filed as exhibits to the registration
statement of which this prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of debt securities
being offered will be incorporated by reference into the registration statement of which this prospectus is a part from reports we file
with the SEC.
Warrants
We
may offer warrants for the purchase of shares of our common stock or preferred stock or of debt securities. We may issue the warrants
by themselves or together with common stock, preferred stock or debt securities, and the warrants may be attached to or separate from
any offered securities. Any warrants issued under this prospectus may be evidenced by warrant certificates. Warrants may be issued under
a separate warrant agreement to be entered into between us and the investors or a warrant agent. Our Board of Directors will determine
the terms of the warrants. This prospectus contains only general terms and provisions of the warrants. The applicable prospectus supplement
will describe the particular terms of the warrants being offered thereby. You should read any prospectus supplement and any free writing
prospectus that we may authorize to be provided to you related to the series of warrants being offered, as well as the complete warrant
agreements that contain the terms of the warrants. Specific warrant agreements will contain additional important terms and provisions
and will be incorporated by reference into the registration statement of which this prospectus is a part from reports we file with the
SEC.
Units
We
may offer units consisting of our common stock or preferred stock, debt securities and/or warrants to purchase any of these securities
in one or more series. We may evidence each series of units by unit certificates that we will issue under a separate agreement. We may
enter into unit agreements with a unit agent. Each unit agent will be a bank or trust company that we select. We will indicate the name
and address of the unit agent in the applicable prospectus supplement relating to a particular series of units. This prospectus contains
only a summary of certain general features of the units. The applicable prospectus supplement will describe the particular features of
the units being offered thereby. You should read any prospectus supplement and any free writing prospectus that we may authorize to be
provided to you related to the series of units being offered, as well as the complete unit agreements that contain the terms of the units.
Specific unit agreements will contain additional important terms and provisions and will be incorporated by reference into the registration
statement of which this prospectus is a part from reports we file with the SEC.
RISK
FACTORS
An
investment in our securities involves a high degree of risk. This prospectus contains, and the prospectus supplement applicable to each
offering of our securities will contain, a discussion of the risks applicable to an investment in our securities. Prior to making a decision
about investing in our securities, you should carefully consider the specific factors discussed under the heading “Risk Factors”
in this prospectus and 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 Item 1A, “Risk Factors,” in our Annual Report on Form 10-K for the fiscal year
ended December 31, 2022, filed with the SEC on March 24, 2023, and 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 and any prospectus supplement related to a particular
offering. The risks and uncertainties we have described are not the only ones we face. Additional risks and uncertainties not presently
known to us or that we currently deem immaterial may also affect our operations. The occurrence of any of these known or unknown risks
might cause you to lose all or part of your investment in the offered securities.
DISCLOSURE
REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus, any accompanying prospectus supplement, any related free writing prospectus and the documents incorporated by reference herein
or therein contain, in addition to historical information, certain forward-looking statements within the meaning of Section 27A of the
Securities Act or 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), that include information relating to future events, future financial performance, strategies, expectations,
competitive environment, regulatory environment and availability of resources. Such forward-looking statements include those that express
plans, anticipation, intent, contingency, goals, targets or future development and/or otherwise are not statements of historical fact.
These forward-looking statements are based on our current expectations and projections about future events and they are subject to risks
and uncertainties known and unknown that could cause actual results and developments to differ materially from those expressed or implied
in such statements.
In
some cases, you can identify forward-looking statements by terminology, such as “expects,” “anticipates,” “intends,”
“estimates,” “plans,” “believes,” “seeks,” “may,” “should”, “could”
or the negative of such terms or other similar expressions. Accordingly, these statements involve estimates, assumptions and uncertainties
that could cause actual results to differ materially from those expressed in them. Any forward-looking statements are qualified in their
entirety by reference to the factors discussed throughout this prospectus, any accompanying prospectus supplement or incorporated herein
by reference.
Risks,
uncertainties and other factors that may cause our actual results, performance or achievements to be different from those expressed or
implied in our written or oral forward-looking statements may be found in this prospectus and any accompanying prospectus supplement
under the heading “Risk Factors” and in our Annual Report on Form 10-K for the year ended December 31, 2022 under the headings
“Risk Factors” and “Business,” as may be amended, supplemented or superseded from time to time by other reports
we file with the SEC in the future and any prospectus supplement related to a particular offering.
Forward-looking
statements speak only as of the date they are made. You should not put undue reliance on any forward-looking statements. We assume no
obligation to update forward-looking statements to reflect actual results, changes in assumptions or changes in other factors affecting
forward-looking information, except to the extent required by applicable securities laws. If we do update one or more forward-looking
statements, no inference should be drawn that we will make additional updates with respect to those or other forward-looking statements.
New
factors emerge from time to time, and it is not possible for us to predict which factors will arise. In addition, we cannot assess the
impact of each factor on our business or the extent to which any factor, or combination of factors, may cause actual results to differ
materially from those contained in any forward-looking statements. We qualify all of the information presented in this prospectus, any
accompanying prospectus supplement and incorporated herein by reference, and particularly our forward-looking statements, by these cautionary
statements.
USE
OF PROCEEDS
Except
as described in any prospectus supplement and any free writing prospectus in connection with a specific offering, we currently intend
to use the net proceeds from the sale of the securities offered under this prospectus for general corporate purposes, including the development
and commercialization of our products, research and development, general and administrative expenses, license or technology acquisitions,
and working capital and capital expenditures. We may also use the net proceeds to invest in or acquire complementary businesses, products,
or technologies, although we have no current commitments or agreements with respect to any such investments or acquisitions as of the
date of this prospectus. We have not determined the amount of net proceeds to be used specifically for the foregoing purposes. As a result,
our management will have broad discretion in the allocation of the net proceeds and investors will be relying on the judgment of our
management regarding the application of the proceeds of any sale of the securities.
Each
time we offer securities under this prospectus, we will describe the intended use of the net proceeds from that offering in the applicable
prospectus supplement. The actual amount of net proceeds we spend on a particular use will depend on many factors, including, our future
capital expenditures, the amount of cash required by our operations, and our future revenue growth, if any. Therefore, we will retain
broad discretion in the use of the net proceeds.
DESCRIPTION
OF CAPITAL STOCK
General
The
following description of our capital stock, together with any additional information we include in any applicable prospectus supplement
or any related free writing prospectus, summarizes the material terms and provisions of our common stock and the preferred stock that
we may offer under this prospectus. 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 particular terms of any class or series of these securities in more detail in the applicable
prospectus supplement. For the complete terms of our common stock and preferred stock, please refer to our Articles of Incorporation,
as amended, and our Bylaws, as amended, are incorporated by reference into the registration statement of which this prospectus is a part
or may be incorporated by reference in this prospectus or any applicable prospectus supplement. The terms of these securities may also
be affected by the Nevada Revised Statutes. The summary below and that contained in any applicable prospectus supplement or any related
free writing prospectus are qualified in their entirety by reference to our Articles of Incorporation and our Bylaws.
As of the date of this prospectus,
our authorized capital stock consisted of 100,000,000 shares of common stock, $0.0001 par value per share, and 5,000,000 shares of preferred
stock, $0.0001 par value per share. Our Board may establish the rights and preferences of the preferred stock from time to time. As of
January 23, 2024, there were 2,886,001 shares of our common stock outstanding (273,095 shares held in treasury) and no shares of our preferred
stock outstanding.
Common
Stock
Holders
of our common stock are entitled to one vote per share on all matters voted on by our shareholders, including the election of directors.
Our Articles of Incorporation and Bylaws do not provide for cumulative voting in the election of directors. Holders of our common stock
are entitled, subject to the rights, privileges, restrictions and conditions attaching to any other class of shares ranking in priority
to our common stock, to receive any dividend declared by our Board of Directors. If we are voluntarily or involuntarily liquidated, dissolved
or wound-up, the holders of our common stock will be entitled to receive, after distribution in full of the preferential amounts, if
any, all of the remaining assets available for distribution ratably in proportion to the number of shares of our common stock held by
them.
Preferred
Stock
Our
Board of Directors has the authority, without further action by our shareholders, to issue up to 5,000,000 shares of preferred stock
in one or more series and to fix the designations, powers, preferences, privileges, and relative participating, optional, or special
rights as well as the qualifications, limitations, or restrictions of the preferred stock, including dividend rights, conversion rights,
voting rights, terms of redemption, and liquidation preferences, any or all of which may be greater than the rights of the common stock.
Our Board of Directors, without shareholder approval, can issue preferred stock with voting, conversion, or other rights that could adversely
affect the voting power and other rights of the holders of common stock. Preferred stock could be issued quickly with terms calculated
to delay or prevent a change of control or make removal of management more difficult. Additionally, the issuance of preferred stock may
have the effect of decreasing the market price of our common stock, and may adversely affect the voting and other rights of the holders
of common stock. At present, we have no plans to issue any shares of preferred stock following this offering.
Applicable
Anti-Takeover Law
Set
forth below is a summary of the provisions of our Articles of Incorporation and Bylaws that could have the effect of delaying or preventing
a change in control of our Company. The following description is only a summary, and it is qualified by reference to the Articles of
Incorporation, Bylaws and relevant provisions of the Nevada Revised Statutes.
Board
of Directors Vacancies
Our
Bylaws authorize only our Board of Directors to fill vacant directorships. In addition, the number of directors constituting our Board
of Directors may be set only by resolution of the majority of the incumbent directors.
Special
Meeting of Shareholders
Our
Bylaws provide that special meetings of our shareholders may be called by our president, our Board of Directors or a committee of our
Board of Directors that has been duly designated by our Board of Directors and whose powers and authority include the power to call such
meetings.
Advance
Notice Requirements for Shareholder Proposals and Director Nominations
Our
Bylaws provide that shareholders seeking to bring business before our annual meeting of shareholders, or to nominate candidates for election
as directors at our annual meeting of shareholders, must provide timely notice of their intent in writing. To be timely, a shareholder’s
notice must be delivered to our secretary at our principal executive offices not later than the close of business on the 90th day
nor earlier than the close of business on the 120th day prior to the first anniversary of the preceding year’s annual meeting;
provided, however, that in the event the date of the annual meeting is not within 25 days before or after such anniversary date, notice
by the shareholder to be timely must be so delivered not later than the close of business on the 10th day following the
day on which such notice of the date of annual meeting was mailed or public disclosure of the date of the annual meeting was made, whichever
occurs first. These provisions may preclude our shareholders from bringing matters before our annual meeting of shareholders or from
making nominations for directors at our annual meeting of shareholders.
Authorized
but Unissued Share
Our
authorized but unissued shares of common stock and preferred stock are available for future issuance without shareholder approval and
may be utilized for a variety of corporate purposes, including future public offerings to raise additional capital, corporate acquisitions
and employee benefit plans. The existence of authorized but unissued and unreserved common stock and preferred stock could render more
difficult or discourage an attempt to obtain control of our Company by means of a proxy contest, tender offer, merger or otherwise.
Mandatory
Forum
Our
Articles of Incorporation provide to the fullest extent permitted by law, and unless we consent in writing to the selection of an alternative
forum, the Eighth Judicial District Court of Clark County, Nevada, shall be the sole and exclusive forum for each of the following: (a)
any derivative action or proceeding brought in the name or right of the corporation or on its behalf, (b) any action asserting a claim
for breach of any fiduciary duty owed by any director, officer, employee or agent of the corporation to the corporation or the corporation’s
stockholders, (c) any action arising or asserting a claim arising pursuant to any provision of the NRS Chapters 78 or 92A or any provision
of these Articles of Incorporation or the bylaws of the corporation or (d) any action asserting a claim governed by the internal affairs
doctrine, including, without limitation, any action to interpret, apply, enforce or determine the validity of our Articles of Incorporation
or our bylaws. Any person or entity purchasing or otherwise acquiring any interest in shares of our capital stock shall be deemed to
have notice of and consented to these provisions. The enforceability of similar exclusive forum provisions in other corporations’
bylaws has been challenged in legal proceedings, and it is possible that a court could rule that this provision in our Bylaws is inapplicable
or unenforceable.
Listing
Our
common stock is listed on The Nasdaq Capital Market under the trading symbol “SILO.”
Transfer
Agent and Registrar
Our
transfer agent and registrar is West Coast Stock Transfer, Inc., located at 721 N. Vulcan Ave. Suite 106 Encinitas, CA 92024.
DESCRIPTION
OF DEBT SECURITIES
The
following description, together with the additional information we include in any applicable prospectus supplements or free writing prospectuses,
summarizes the material terms and provisions of the debt securities that we may offer under this prospectus. We may issue debt securities,
in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. While the terms we have summarized
below will apply generally 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 or free writing prospectus. The terms of
any debt securities we offer under a prospectus supplement may differ from the terms we describe below. However, no prospectus supplement
shall fundamentally change the terms that are set forth in this prospectus or offer a security that is not registered and described in
this prospectus at the time of its effectiveness. As of the date of this prospectus, we have no outstanding registered debt securities.
Unless the context requires otherwise, whenever we refer to the “indentures,” we also are referring to any supplemental indentures
that specify the terms of a particular series of debt securities.
We
will issue any senior debt securities under the senior indenture that we will enter into with the trustee named in the senior indenture.
We will issue any subordinated debt securities under the subordinated indenture and any supplemental indentures that we will enter into
with the trustee 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, and supplemental indentures and forms of debt securities containing the terms of the debt securities
being offered will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated by reference
from reports that we file with the SEC.
The
indentures will be qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”). We use the term
“trustee” to refer to either the trustee under the senior indenture or the trustee under the subordinated indenture, as applicable.
The
following summaries of material provisions of the senior debt securities, the subordinated debt securities and the indentures are subject
to, and qualified in their entirety by reference to, all of the provisions of the indenture and any supplemental indentures applicable
to a particular series of debt securities. We urge you to read the applicable prospectus supplements and any related free writing prospectuses
related to the debt securities that we may offer under this prospectus, as well as the complete indentures that contains the terms of
the debt securities. Except as we may otherwise indicate, the terms of the senior indenture and the subordinated indenture 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. We will describe in the applicable prospectus supplement the terms of the series of debt securities being offered,
including:
| ● | the
principal amount being offered, and if a series, the total amount authorized and the total amount outstanding; |
| ● | any
limit on the amount that may be issued; |
| ● | 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; |
| ● | whether
and under what circumstances, if any, we will pay additional amounts on any debt securities held by a person who is not a United States
person for tax purposes, and whether we can redeem the debt securities if we have to pay such additional amounts; |
| ● | the
annual interest rate, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue,
the dates interest will be payable and the regular record dates for interest payment dates or the method for determining such dates; |
| ● | whether
or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
| ● | the
terms of the subordination of any series of subordinated debt; |
| ● | the
place where payments will be made; |
| ● | restrictions
on transfer, sale or other assignment, if any; |
| ● | our
right, if any, to defer payment of interest and the maximum length of any such deferral period; |
| ● | the
date, if any, after which, and the price at which, we may, at our option, redeem the series of debt securities pursuant to any optional
or provisional redemption provisions and the terms of those redemption provisions; |
| ● | provisions
for a sinking fund purchase or other analogous fund, if any, including the date, if any, on which, and the price at which we are obligated,
pursuant thereto 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; |
| ● | whether
the indenture will restrict our ability or the ability of our subsidiaries, if any, to: |
| ● | incur
additional indebtedness; |
| ● | issue
additional securities; |
| ● | pay dividends or make distributions in respect of our capital
stock or the capital stock of our subsidiaries; |
| ● | place restrictions on our subsidiaries’ 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 shareholders or affiliates; |
| ● | issue or sell stock of our subsidiaries; or |
| ● | effect a consolidation or merger; |
| ● | whether the indenture will require us to maintain any interest
coverage, fixed charge, cash flow-based, asset-based or other financial ratios; |
| ● | a discussion of certain material or special United States
federal income tax considerations applicable to the debt securities; |
| ● | information describing any book-entry features; |
| ● | the applicability of the provisions in the indenture on discharge; |
| ● | 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 of 1986, as amended; |
| ● | the denominations in which we will issue the series of debt
securities, if other than denominations of $1,000 and any integral multiple thereof; |
| ● | the currency of payment of debt securities if other than U.S.
dollars and the manner of determining the equivalent amount in U.S. dollars; and |
| ● | any other specific terms, preferences, rights or limitations
of, or restrictions on, the debt securities, including any additional events of default or covenants provided with respect to the debt
securities, and any terms that may be required by us or advisable under applicable laws or regulations. |
Conversion or Exchange Rights
We will set forth in the applicable
prospectus supplement the terms under which a series of debt securities may be convertible into or exchangeable for our common stock,
our preferred stock or other securities (including securities of a third party). We will include provisions as to whether conversion or
exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of shares
of our common stock, our preferred stock or other securities (including securities of a third party) that the holders of the series of
debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise
in the prospectus supplement applicable to a particular series of debt securities, the indentures will not contain any covenant that restricts
our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all or substantially all of our assets. However,
any successor to or acquirer of such assets must assume all of our obligations under the indentures or the debt securities, as appropriate.
If the debt securities are convertible into or exchangeable for our other securities or securities of other entities, 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
Unless we provide otherwise
in the prospectus supplement applicable to a particular series of debt securities, the following are events of default under the indentures
with respect to any series of debt securities that we may issue:
| ● | 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; |
| ● | if we fail to pay the principal, premium or sinking fund payment,
if any, when due and payable at maturity, upon redemption or repurchase or otherwise, and the time for payment has not been extended; |
| ● | 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 trustee or we and the trustee receive notice from the holders of at least 25%
in aggregate principal amount of the outstanding debt securities of the applicable series; and |
| ● | if specified events of bankruptcy, insolvency or reorganization
occur. |
We will describe in each applicable
prospectus supplement any additional events of default relating to the relevant series of debt securities.
If an event of default with
respect to debt securities of any series occurs and is continuing, other than an event of default specified in the last bullet point above,
the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series, by notice
to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid principal, premium, if any, and accrued
interest, if any, due and payable immediately. If an event of default arises due to the occurrence of certain specified bankruptcy, insolvency
or reorganization events, the unpaid principal, premium, if any, and accrued interest, if any, of each issue of debt securities then outstanding
shall be due and payable without any notice or other action on the part of the trustee or any holder.
The holders of a majority
in principal amount of the outstanding debt securities of an affected series may waive any default or event of default with respect to
the series and its consequences, except defaults or events of default regarding payment of principal, premium, if any, or interest, unless
we have cured the default or event of default in accordance with the indenture. Any waiver shall cure the default or event of default.
Subject to the terms of the
indentures, if an event of default under an indenture shall occur and be continuing, the 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 trustee reasonable indemnity or security satisfactory to it against any loss, liability or expense.
The holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the
trustee, with respect to the debt securities of that series, provided that:
| ● | the direction so given by the holder is not in conflict with
any law or the applicable indenture; and |
| ● | subject to its duties under the Trust Indenture Act, the trustee
need not take any action that might involve it in personal liability or might be unduly prejudicial to the holders not involved in the
proceeding. |
The indentures will provide
that if an event of default has occurred and is continuing, the trustee will be required in the exercise of its powers to use the degree
of care that a prudent person would use in the conduct of its own affairs. The trustee, however, may refuse to follow any direction that
conflicts with law or the indenture, or that the trustee determines is unduly prejudicial to the rights of any other holder of the relevant
series of debt securities, or that would involve the trustee in personal liability. Prior to taking any action under the indentures, the
trustee will be entitled to indemnification against all costs, expenses and liabilities that would be incurred by taking or not taking
such action.
A holder of the debt securities
of any series will have the right to institute a proceeding under the indentures or to appoint a receiver or trustee, or to seek other
remedies only if:
| ● | the holder has given written notice to the trustee of a continuing
event of default with respect to that series; |
| ● | the holders of at least 25% in aggregate principal amount
of the outstanding debt securities of that series have made a written request and such holders have offered reasonable indemnity to the
trustee or security satisfactory to it against any loss, liability or expense or to be incurred in compliance with instituting the proceeding
as trustee; and |
| ● | the trustee does not institute the proceeding, and does not
receive from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series other conflicting
directions within 90 days after the notice, request and offer. |
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, or other defaults that may be specified in the applicable prospectus supplement.
We will periodically file
statements with the trustee regarding our compliance with specified covenants in the indentures.
The indentures will provide
that if a default occurs and is continuing and is actually known to a responsible officer of the trustee, the trustee must mail to each
holder notice of the default within the earlier of 90 days after it occurs and 30 days after it is known by a responsible officer of the
trustee or written notice of it is received by the trustee, unless such default has been cured or waived. Except in the case of a default
in the payment of principal or premium of, or interest on, any debt security or certain other defaults specified in an indenture, 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, or responsible officers of the trustee, in good faith determine that withholding notice is in the best interests of holders
of the relevant series of debt securities.
Modification of Indenture; Waiver
Subject to the terms of the
indenture for any series of debt securities that we may issue, we and the trustee may change an indenture without the consent of any holders
with respect to the following specific matters:
| ● | to fix any ambiguity, defect or inconsistency in the indenture; |
| ● | to comply with the provisions described above under “Description
of Debt Securities — Consolidation, Merger or Sale;” |
| ● | to comply with any requirements of the SEC in connection with
the qualification of any indenture under the Trust Indenture Act; |
| ● | to add to, delete from or revise the conditions, limitations
and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of debt securities, as set forth in
the indenture; |
| ● | to provide for the issuance of, and establish the form and
terms and conditions of, the debt securities of any series as provided under “Description of Debt Securities — General,”
to establish the form of any certifications required to be furnished pursuant to the terms of the indenture or any series of debt securities,
or to add to the rights of the holders of any series of debt securities; |
| ● | to evidence and provide for the acceptance of appointment
hereunder by a successor trustee; |
| ● | to provide for uncertificated debt securities and to make
all appropriate changes for such purpose; |
| ● | to add such new covenants, restrictions, conditions or provisions
for the benefit 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 right or power conferred to us in the indenture; or |
| ● | to change anything that does not adversely affect the interests
of any holder of debt securities of any series in any material respect. |
In addition, under the indentures,
the rights of holders of a series of debt securities may be changed by us and the trustee with the written consent of the holders of at
least a majority in aggregate principal amount of the outstanding debt securities of each series that is affected. However, subject to
the terms of the indenture for any series of debt securities that we may issue or otherwise provided in the prospectus supplement applicable
to a particular series of debt securities, we and the trustee may only make the following changes with the consent of each holder of any
outstanding debt securities affected:
| ● | extending the stated maturity of the series of debt securities; |
| ● | reducing the principal amount, reducing the rate of or extending
the time of payment of interest, or reducing any premium payable upon the redemption or repurchase of any debt securities; or |
| ● | 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,
subject to the terms of the indenture and any limitation otherwise provided in the prospectus supplement applicable to a particular series
of debt securities, we may elect to be discharged from our obligations with respect to one or more series of debt securities, except for
specified obligations, including obligations to:
| ● | register the transfer or exchange of debt securities of the
series; |
| ● | replace stolen, lost or mutilated debt securities of the series; |
| ● | maintain paying agencies; |
| ● | hold monies for payment in trust; |
| ● | recover excess money held by the trustee; |
| ● | compensate and indemnify the trustee; and |
| ● | appoint any successor trustee. |
In order to exercise our rights
to be discharged, we will deposit with the trustee money or government obligations sufficient to pay all the principal of, and any premium
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 will 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. See “Legal Ownership
of Securities” below for a further description of the terms relating to any book-entry securities.
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:
| ● | issue, register the transfer of, or exchange any debt securities
of that series during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of any
debt securities that may be selected for redemption and ending at the close of business on the day of the mailing; or |
| ● | register the transfer of or exchange any debt securities so
selected for redemption, in whole or in part, except the unredeemed portion of any debt securities we are redeeming in part. |
Information Concerning the Trustee
The trustee, other than during
the occurrence and continuance of an event of default under an indenture, undertakes to perform only those duties as are specifically
set forth in the applicable indenture and 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. However, upon an event of default under an indenture, the 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.
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 payment.
We will pay principal of and
any premium and interest on the debt securities of a particular series at the office of the paying agents designated by us, except that
unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that we will mail to the
holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus supplement, we will designate
the corporate trust office of the trustee as our sole paying agent for payments with respect to debt securities of each series. We will
name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities of a particular
series. We 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 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.
Ranking Debt Securities
The subordinated debt securities
will be unsecured and will be subordinate and junior in priority of payment to certain other indebtedness to the extent described in a
prospectus supplement. The subordinated indenture does not limit the amount of subordinated debt securities that we may issue. It also
does not limit us from issuing any other secured or unsecured debt.
The senior debt securities
will be unsecured and will rank equally in right of payment to all our other senior unsecured debt. The senior indenture does not limit
the amount of senior debt securities that we may issue. It also does not limit us from issuing any other secured or unsecured debt.
DESCRIPTION OF WARRANTS
The following description,
together with the additional information we may include in any applicable prospectus supplements and free writing prospectuses, summarizes
the material terms and provisions of the warrants that we may offer under this prospectus, which may consist of warrants to purchase common
stock, preferred stock or debt securities and may be issued in one or more series. Warrants may be offered independently or together with
common stock, preferred stock or debt securities offered by any prospectus supplement, and may be attached to or separate from those securities.
While the terms we have summarized below will apply generally to any warrants that we may offer under this prospectus, we will describe
the particular terms of any series of warrants that we may offer in more detail in the applicable prospectus supplement and any applicable
free writing prospectus. The terms of any warrants offered under a prospectus supplement may differ from the terms described below. However,
no prospectus supplement will fundamentally change the terms that are set forth in this prospectus or offer a security that is not registered
and described in this prospectus at the time of its effectiveness.
We may issue the warrants
under a warrant agreement that we will enter into with a warrant agent to be selected by us. If selected, the warrant agent will act solely
as an agent of ours in connection with the warrants and will not act as an agent for the holders or beneficial owners of the warrants.
If applicable, we will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference
from a Current Report on Form 8-K that we file with the SEC, the form of warrant agreement, including a form of warrant certificate, that
describes the terms of the particular series of warrants we are offering before the issuance of the related series of warrants. The following
summaries of material provisions of the warrants and the warrant agreements are subject to, and qualified in their entirety by reference
to, all the provisions of the warrant agreement and warrant certificate applicable to a particular series of warrants. We urge you to
read the applicable prospectus supplement and any applicable free writing prospectus related to the particular series of warrants that
we sell under this prospectus, as well as the complete warrant agreements and warrant certificates that contain the terms of the warrants.
General
We will describe in the applicable
prospectus supplement the terms relating to a series of warrants, including:
| ● | the offering price and aggregate number of warrants offered; |
| ● | the currency for which the warrants may be purchased; |
| ● | 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; |
| ● | if applicable, the date on and after which the warrants and
the related securities will be separately transferable; |
| ● | in the case of warrants to purchase debt securities, the principal
amount of debt securities purchasable upon exercise of one warrant and the price at, and currency in which, this principal amount of
debt securities may be purchased upon such exercise; |
| ● | in the case of warrants to purchase common stock or preferred
stock, the number of shares of common stock or preferred stock, as the case may be, purchasable upon the exercise of one warrant and
the price at which these shares may be purchased upon such exercise; |
| ● | the effect of any merger, consolidation, sale or other disposition
of our business on the warrant agreements and the warrants; |
| ● | the terms of any rights to redeem or call the warrants; |
| ● | any provisions for changes to or adjustments in the exercise
price or number of securities issuable upon exercise of the warrants; |
| ● | the dates on which the right to exercise the warrants will
commence and expire; |
| ● | the manner in which the warrant agreements and warrants may
be modified; |
| ● | United States federal income tax consequences of holding or
exercising the warrants; |
| ● | the terms of the securities issuable upon exercise of the
warrants; and |
| ● | any other specific terms, preferences, rights or limitations
of or restrictions on the warrants. |
Before exercising their warrants,
holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including:
| ● | in the case of warrants to purchase debt securities, the right
to receive payments of principal of, or premium, if any, or interest on, the debt securities purchasable upon exercise or to enforce
covenants in the applicable indenture; or |
| ● | in the case of warrants to purchase common stock or preferred
stock, the right to receive dividends, if any, or, payments upon our liquidation, dissolution or winding up or to exercise voting rights,
if any. |
Exercise of Warrants
Each warrant will entitle
the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise price that we describe in
the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement, holders of the warrants may
exercise the warrants at any time up to the specified time on the expiration date that we set forth in the applicable prospectus supplement.
After the close of business on the expiration date, unexercised warrants will become void.
Holders of the warrants may
exercise the warrants by delivering the warrant certificate representing the warrants to be exercised together with specified information,
and paying the required amount to the warrant agent in immediately available funds, as provided in the applicable prospectus supplement.
We will set forth on the reverse side of the warrant certificate and in the applicable prospectus supplement the information that the
holder of the warrant will be required to deliver to us or the warrant agent as applicable.
Upon receipt of the required
payment and the warrant certificate properly completed and duly executed at the corporate trust office of the warrant agent or any other
office indicated in the applicable prospectus supplement, we will issue and deliver the securities purchasable upon such exercise. If
fewer than all of the warrants represented by the warrant certificate are exercised, then we will issue a new warrant certificate for
the remaining amount of warrants. If we so indicate in the applicable prospectus supplement, holders of the warrants may surrender securities
as all or part of the exercise price for warrants.
Enforceability of Rights by Holders of Warrants
If selected, each warrant
agent will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship of agency
or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants.
A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant, including
any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may,
without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right to
exercise, and receive the securities purchasable upon exercise of, its warrants.
DESCRIPTION OF UNITS
The following description,
together with the additional information we may include in any applicable prospectus supplements and free writing prospectuses, summarizes
the material terms and provisions of the units that we may offer under this prospectus.
While the terms we have summarized
below will apply generally to any units that we may offer under this prospectus, we will describe the particular terms of any series of
units in more detail in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement may differ
from the terms described below. However, no prospectus supplement will fundamentally change the terms that are set forth in this prospectus
or offer a security that is not registered and described in this prospectus at the time of its effectiveness.
We will file as exhibits to
the registration statement of which this prospectus is a part, or will incorporate by reference from a Current Report on Form 8-K that
we file with the SEC, the form of unit agreement that describes the terms of the series of units we are offering, and any supplemental
agreements, before the issuance of the related series of units. The following summaries of material terms and provisions of the units
are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement and any supplemental agreements
applicable to a particular series of units. We urge you to read the applicable prospectus supplements related to the particular series
of units that we sell under this prospectus, as well as the complete unit agreement and any supplemental agreements that contain the terms
of the units.
General
We may issue units comprised
of one or more debt securities, shares of common stock, shares of preferred stock and warrants in any combination. Each unit will be issued
so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights
and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities
included in the unit may not be held or transferred separately, at any time or at any time before a specified date.
We will describe in the applicable
prospectus supplement the terms of the series of units, including:
| ● | 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; |
| ● | any provisions of the governing unit agreement that differ
from those described below; and |
| ● | any provisions for the issuance, payment, settlement, transfer
or exchange of the units or of the securities comprising the units. |
The provisions described in
this section, as well as those described under “Description of Capital Stock,” “Description of Debt Securities”
and “Description of Warrants” will apply to each unit and to any common stock, preferred stock, debt security or warrant
included in each unit, respectively.
Unit Agent
The name and address of the
unit agent, if any, for any units we offer will be set forth in the applicable prospectus supplement.
Issuance in Series
We may issue units in such
amounts and in numerous distinct series as we determine.
Enforceability of Rights by Holders of Units
Each unit agent will act solely
as our agent under the applicable unit agreement and will not assume any obligation or relationship of agency or trust with any holder
of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit agent will have no duty or
responsibility in case of any default by us under the applicable unit agreement or unit, including any duty or responsibility to initiate
any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the consent of the related unit
agent or the holder of any other unit, enforce by appropriate legal action its rights as holder under any security included in the unit.
We, the unit agents and any
of their agents may treat the registered holder of any unit certificate as an absolute owner of the units evidenced by that certificate
for any purpose and as the person entitled to exercise the rights attaching to the units so requested, despite any notice to the contrary.
See “Legal Ownership of Securities.”
LEGAL OWNERSHIP OF SECURITIES
We can issue securities in
registered form or in the form of one or more global securities. We describe global securities in greater detail below. We refer to those
persons who have securities registered in their own names on the books that we or any applicable trustee or depositary or warrant agent
maintain for this purpose as the “holders” of those securities. These persons are the legal holders of the securities. We
refer to those persons who, indirectly through others, own beneficial interests in securities that are not registered in their own names,
as “indirect holders” of those securities. As we discuss below, indirect holders are not legal holders, and investors in securities
issued in book-entry form or in street name will be indirect holders.
Book-Entry Holders
We may issue securities in
book-entry form only, as we will specify in the applicable prospectus supplement. This means securities may be represented by one or more
global securities registered in the name of a financial institution that holds them as depositary on behalf of other financial institutions
that participate in the depositary’s book-entry system. These participating institutions, which are referred to as participants,
in turn, hold beneficial interests in the securities on behalf of themselves or their customers.
Only the person in whose name
a security is registered is recognized as the holder of that security. Global securities will be registered in the name of the depositary
or its participants. Consequently, for global securities, we will recognize only the depositary as the holder of the securities, and we
will make all payments on the securities to the depositary. The depositary passes along the payments it receives to its participants,
which in turn pass the payments along to their customers who are the beneficial owners. The depositary and its participants do so under
agreements they have made with one another or with their customers; they are not obligated to do so under the terms of the securities.
As a result, investors in
a global security will not own securities directly. Instead, they will own beneficial interests in a global security, through a bank,
broker or other financial institution that participates in the depositary’s book-entry system or holds an interest through a participant.
As long as the securities are issued in global form, investors will be indirect holders, and not legal holders, of the securities.
Street Name Holders
We may terminate a global
security or issue securities that are not issued in global form. In these cases, investors may choose to hold their securities in their
own names or in “street name.” Securities held by an investor in street name would be registered in the name of a bank, broker
or other financial institution that the investor chooses, and the investor would hold only a beneficial interest in those securities through
an account he or she maintains at that institution.
For securities held in street
name, we or any applicable trustee or depositary will recognize only the intermediary banks, brokers and other financial institutions
in whose names the securities are registered as the holders of those securities, and we or any such trustee or depositary will make all
payments on those securities to them. These institutions pass along the payments they receive to their customers who are the beneficial
owners, but only because they agree to do so in their customer agreements or because they are legally required to do so. Investors who
hold securities in street name will be indirect holders, not legal holders, of those securities.
Legal Holders
Our obligations, as well as
the obligations of any applicable trustee or third party employed by us or a trustee, run only to the legal holders of the securities.
We do not have obligations to investors who hold beneficial interests in global securities, in street name or by any other indirect means.
This will be the case whether an investor chooses to be an indirect holder of a security or has no choice because we are issuing the securities
only in global form.
For example, once we make
a payment or give a notice to the holder, we have no further responsibility for the payment or notice even if that holder is required,
under agreements with its participants or customers or by law, to pass it along to the indirect holders but does not do so. Similarly,
we may want to obtain the approval of the holders to amend an indenture, to relieve us of the consequences of a default or of our obligation
to comply with a particular provision of an indenture, or for other purposes. In such an event, we would seek approval only from the legal
holders, and not the indirect holders, of the securities. Whether and how the legal holders contact the indirect holders is up to the
legal holders.
Special Considerations for Indirect Holders
If you hold securities through
a bank, broker or other financial institution, either in book-entry form because the securities are represented by one or more global
securities or in street name, you should check with your own institution to find out:
| ● | how it handles securities payments and notices; |
| ● | whether it imposes fees or charges; |
| ● | how it would handle a request for the holders’ consent,
if ever required; |
| ● | whether and how you can instruct it to send you securities
registered in your own name so you can be a legal holder, if that is permitted in the future; |
| ● | how it would exercise rights under the securities if there
were a default or other event triggering the need for holders to act to protect their interests; and |
| ● | if the securities are in book-entry form, how the depositary’s
rules and procedures will affect these matters. |
Global Securities
A global security is a security
that represents one or any other number of individual securities held by a depositary. Generally, all securities represented by the same
global securities will have the same terms.
Each security issued in book-entry
form will be represented by a global security that we issue to, deposit with and register in the name of a financial institution or its
nominee that we select. The financial institution that we select for this purpose is called the depositary. Unless we specify otherwise
in the applicable prospectus supplement, The Depository Trust Company, New York, NY, known as DTC, will be the depositary for all securities
issued in book-entry form.
A global security may not
be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor depositary, unless special
termination situations arise. We describe those situations below under “— Special Situations When A Global Security
Will Be Terminated.” As a result of these arrangements, the depositary, or its nominee, will be the sole registered owner and
legal holder of all securities represented by a global security, and investors will be permitted to own only beneficial interests in a
global security. Beneficial interests must be held by means of an account with a broker, bank or other financial institution that in turn
has an account with the depositary or with another institution that does. Thus, an investor whose security is represented by a global
security will not be a legal holder of the security, but only an indirect holder of a beneficial interest in the global security.
If the prospectus supplement
for a particular security indicates that the security will be issued as a global security, then the security will be represented by a
global security at all times unless and until the global security is terminated. If termination occurs, we may issue the securities through
another book-entry clearing system or decide that the securities may no longer be held through any book-entry clearing system.
Special Considerations For Global Securities
As an indirect holder, an
investor’s rights relating to a global security will be governed by the account rules of the investor’s financial institution
and of the depositary, as well as general laws relating to securities transfers. We do not recognize an indirect holder as a holder of
securities and instead deal only with the depositary that holds the global security.
If securities are issued only
as global securities, an investor should be aware of the following:
| ● | an investor cannot cause the securities to be registered in
his or her name, and cannot obtain non-global certificates for his or her interest in the securities, except in the special situations
we describe below; |
| ● | an investor will be an indirect holder and must look to his
or her own bank or broker for payments on the securities and protection of his or her legal rights relating to the securities, as we
describe above; |
| ● | an investor may not be able to sell interests in the securities
to some insurance companies and to other institutions that are required by law to own their securities in non-book-entry form; |
| ● | an investor may not be able to pledge his or her interest
in the global security in circumstances where certificates representing the securities must be delivered to the lender or other beneficiary
of the pledge in order for the pledge to be effective; |
| ● | the depositary’s policies, which may change from time
to time, will govern payments, transfers, exchanges and other matters relating to an investor’s interest in the global security.
We and any applicable trustee have no responsibility for any aspect of the depositary’s actions or for its records of ownership
interests in the global security. We and the trustee also do not supervise the depositary in any way; |
| ● | the depositary may, and we understand that DTC will, require
that those who purchase and sell interests in the global security within its book-entry system use immediately available funds, and your
broker or bank may require you to do so as well; and |
| ● | financial institutions that participate in the depositary’s
book-entry system, and through which an investor holds its interest in the global security, may also have their own policies affecting
payments, notices and other matters relating to the securities. There may be more than one financial intermediary in the chain of ownership
for an investor. We do not monitor and are not responsible for the actions of any of those intermediaries. |
Special Situations When A Global Security Will
Be Terminated
In a few special situations
described below, a global security will terminate and interests in it will be exchanged for physical certificates representing those interests.
After that exchange, the choice of whether to hold securities directly or in street name will be up to the investor. Investors must consult
their own banks or brokers to find out how to have their interests in securities transferred to their own names, so that they will be
direct holders. We have described the rights of holders and street name investors above.
A global security will terminate
when the following special situations occur:
| ● | if the depositary notifies us that it is unwilling, unable
or no longer qualified to continue as depositary for that global security and we do not appoint another institution to act as depositary
within 90 days; |
| ● | if we notify any applicable trustee that we wish to terminate
that global security; or |
| ● | if an event of default has occurred with regard to securities
represented by that global security and has not been cured or waived. |
The applicable prospectus
supplement may also list additional situations for terminating a global security that would apply only to the particular series of securities
covered by the prospectus supplement. When a global security terminates, the depositary, and neither we, nor any applicable trustee, is
responsible for deciding the names of the institutions that will be the initial direct holders.
PLAN OF DISTRIBUTION
We may sell the securities
being offered hereby in one or more of the following ways from time to time:
| ● | through agents to the public or to investors; |
| ● | to underwriters for resale to the public or to investors; |
| ● | negotiated transactions; |
| ● | directly to investors; or |
| ● | through a combination of any of these methods of sale. |
As set forth in more detail
below, the securities may be distributed from time to time in one or more transactions:
| ● | at a fixed price or prices, which may be changed; |
| ● | at market prices prevailing at the time of sale; |
| ● | at prices related to such prevailing market prices; or |
We will set forth in a prospectus
supplement the terms of that particular offering of securities, including:
| ● | the name or names of any agents or underwriters; |
| ● | the purchase price of the securities being offered and the
proceeds we will receive from the sale; |
| ● | any over-allotment options under which underwriters may purchase
additional securities from us; |
| ● | any agency fees or underwriting discounts and other items
constituting agents’ or underwriters’ compensation; |
| ● | any initial public offering price; |
| ● | any discounts or concessions allowed or re-allowed or paid
to dealers; and |
| ● | any securities exchanges or markets on which such securities
may be listed. |
Only underwriters named in
an applicable prospectus supplement are underwriters of the securities offered by that prospectus supplement.
If underwriters are used in
an offering, we will execute an underwriting agreement with such underwriters and will specify the name of each underwriter and the terms
of the transaction (including any underwriting discounts and other terms constituting compensation of the underwriters and any dealers)
in a prospectus supplement. The securities may be offered to the public either through underwriting syndicates represented by managing
underwriters or directly by one or more investment banking firms or others, as designated. If an underwriting syndicate is used, the managing
underwriter(s) will be specified on the cover of the prospectus supplement. If underwriters are used in the sale, the offered securities
will be acquired by the underwriters for their own accounts and may be resold from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. Any public offering price
and any discounts or concessions allowed or re-allowed or paid to dealers may be changed from time to time. Unless otherwise set forth
in the prospectus supplement, the obligations of the underwriters to purchase the offered securities will be subject to conditions precedent
and the underwriters will be obligated to purchase all of the offered securities if any are purchased.
We may grant to the underwriters
options to purchase additional securities to cover over-allotments, if any, at the public offering price, with additional underwriting
commissions or discounts, as may be set forth in a related prospectus supplement. The terms of any over-allotment option will be set forth
in the prospectus supplement for those securities.
If we use a dealer in the
sale of the securities being offered pursuant to this prospectus or any prospectus supplement, we will sell the securities to the dealer,
as principal. The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of
resale. The names of the dealers and the terms of the transaction will be specified in a prospectus supplement.
We may sell the securities
directly or through agents we designate from time to time. We will name any agent involved in the offering and sale of securities and
we will describe any commissions we will pay the agent in the prospectus supplement. Unless the prospectus supplement states otherwise,
any agent will act on a best-efforts basis for the period of its appointment.
We may authorize agents or
underwriters to solicit offers by institutional investors to purchase securities from us at the public offering price set forth in the
prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. We
will describe the conditions to these contracts and the commissions we must pay for solicitation of these contracts in the prospectus
supplement.
In connection with the sale
of the securities, underwriters, dealers or agents may receive compensation from us or from purchasers of the common stock for whom they
act as agents in the form of discounts, concessions or commissions. Underwriters may sell the securities to or through dealers, and those
dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters or commissions from the purchasers
for whom they may act as agents. Underwriters, dealers and agents that participate in the distribution of the securities, and any institutional
investors or others that purchase common stock directly and then resell the securities, may be deemed to be underwriters, and any discounts
or commissions received by them from us and any profit on the resale of the common stock by them may be deemed to be underwriting discounts
and commissions under the Securities Act.
We may provide agents and
underwriters with indemnification against particular civil liabilities, including liabilities under the Securities Act, or contribution
with respect to payments that the agents or underwriters may make with respect to such liabilities. Agents and underwriters 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 (including the writing of options), or sell securities not covered by this prospectus to third parties
in privately negotiated transactions. If the applicable prospectus supplement indicates, in connection with such a transaction, the third
parties may, pursuant to this prospectus and the applicable prospectus supplement, sell securities covered by this prospectus and the
applicable prospectus supplement. If so, the third party may use securities borrowed from us or others to settle such sales and may use
securities received from us to close out any related short positions. We may also loan or pledge securities covered by this prospectus
and the applicable prospectus supplement to third parties, who may sell the loaned securities or, in an event of default in the case of
a pledge, sell the pledged securities pursuant to this prospectus and the applicable prospectus supplement. The third party in such sale
transactions will be an underwriter and will be identified in the applicable prospectus supplement or in a post-effective amendment.
To facilitate an offering
of a series of securities, persons participating in the offering may engage in transactions that stabilize, maintain, or otherwise affect
the market price of the securities. This may include over-allotments or short sales of the securities, which involves the sale by persons
participating in the offering of more securities than have been sold to them by us. In those circumstances, such persons would cover such
over-allotments or short positions by purchasing in the open market or by exercising the over-allotment option granted to those persons.
In addition, those persons may stabilize or maintain the price of the securities by bidding for or purchasing securities in the open market
or by imposing penalty bids, whereby selling concessions allowed to underwriters or dealers participating in any such offering may be
reclaimed if securities sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may
be to stabilize or maintain the market price of the securities at a level above that which might otherwise prevail in the open market.
Such transactions, if commenced, may be discontinued at any time. We make no representation or prediction as to the direction or magnitude
of any effect that the transactions described above, if implemented, may have on the price of our securities.
Unless otherwise specified
in the applicable prospectus supplement, each class or series of securities will be a new issue with no established trading market, other
than our common stock, which is listed on The Nasdaq Capital Market. We may elect to list any other class or series of securities on any
exchange or market, but we are not obligated to do so. It is possible that one or more underwriters may make a market in a class or series
of securities, but the underwriters will not be obligated to do so and may discontinue any market making at any time without notice. We
cannot give any assurance as to the liquidity of the trading market for any of the securities.
In order to comply with the
securities laws of some U.S. states or territories, if applicable, the securities offered pursuant to this prospectus will be sold in
those states only through registered or licensed brokers or dealers. In addition, in some states securities may not be sold unless they
have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement
is available and complied with.
Any underwriter may engage
in overallotment, stabilizing transactions, short covering transactions and penalty bids in accordance with Regulation M under the Exchange
Act. Overallotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids
to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. Short covering transactions involve
purchases of the securities 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 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 these activities at any time.
Any underwriters who are qualified
market makers on The Nasdaq Capital Market may engage in passive market making transactions in the securities on The Nasdaq Capital Market
in accordance with Rule 103 of Regulation M, during the business day prior to the pricing of the offering, before the commencement of
offers or sales of the securities. 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.
LEGAL MATTERS
The validity of the issuance
of the securities offered hereby will be passed upon for us by Sheppard, Mullin, Richter & Hampton LLP, New York, NY. Additional legal
matters may be passed upon for us or any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus supplement.
EXPERTS
Our consolidated financial
statements as of and for the years ended December 31, 2022 and 2021, incorporated by reference in this prospectus and the registration
statement, of which it forms a part, have been audited by Salberg & Company, P.A., independent registered public accounting firm,
as set forth in their report thereon incorporated by reference herein, and are included in reliance on such report given on the authority
of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus constitutes
a part of the registration statement on Form S-3 that we have filed with the SEC under the Securities Act. As permitted by the SEC’s
rules, this prospectus and any accompanying prospectus supplement, which forms a part of the registration statement, do not contain all
of the information that is included in the registration statement. You will find additional information about us in the registration statement.
Any statement made in this prospectus or any accompanying prospectus supplement concerning legal documents are not necessarily complete
and you should read the documents that are filed as exhibits to the registration statement or otherwise filed with the SEC for a more
complete understanding of the document or matter.
We are subject to the reporting
requirements of the Exchange Act and file annual, quarterly and current reports, proxy statements and other information with the SEC.
You can read our SEC filings, including the registration statement, over the internet at the SEC’s website at http://www.sec.gov.
We also maintain a website at www.silopharma.com, at which you may access these materials free of charge as soon as reasonably
practicable after they are electronically filed with, or furnished to, the SEC. The information contained in, or that can be accessed
through, our website is not part of this prospectus.
You may also read and copy
any document we file with the SEC at its public reference facilities at 100 F Street, N.E., Room 1580, Washington, DC 20549. You may also
obtain copies of these documents at prescribed rates by writing to the Public Reference Section of the SEC at 100 F Street, N.E., Washington,
D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the public reference facilities. You may
also request a copy of these filings, at no cost, by writing or telephoning us at: 677 N Washington Boulevard, Sarasota, Florida 34236,
(718) 400-9031.
INCORPORATION OF DOCUMENTS BY REFERENCE
This prospectus is part of
the registration statement, but the registration statement includes and incorporates by reference additional information and exhibits.
The SEC permits us to “incorporate by reference” the information contained in documents we file with the SEC, which means
that we can disclose important information to you by referring you to those documents rather than by including them in this prospectus.
Information that is incorporated by reference is considered to be part of this prospectus and you should read it with the same care that
you read this prospectus and any subsequent prospectus supplement. Information that we file later with the SEC will automatically update
and supersede the information that is either contained, or incorporated by reference, in this prospectus, and will be considered to be
a part of this prospectus from the date those documents are filed.
We incorporate by reference
the documents listed below, all filings filed by us pursuant to the Exchange Act after the date of the registration statement of which
this prospectus and any accompanying prospectus supplement forms a part, and any future filings we make with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the time that all securities covered by this prospectus have been sold; provided, however,
that we are not incorporating any information furnished under either Item 2.02 or Item 7.01 of any Current Report on Form 8-K and exhibits
furnished on such form that relate to such items:
| ● | our Annual Report on Form 10-K for the year ended December
31, 2022 filed with the SEC on March 24, 2023; |
| ● | our Quarterly Report on Form 10-Q for the quarter ended March
31, 2023 filed with the SEC on May 12, 2023; |
| ● | our Quarterly Report on Form 10-Q for the quarter ended June
30, 2023 filed with the SEC on August 11, 2023; |
| ● | our Quarterly Report on Form 10-Q for the quarter ended September
30, 2023 filed with the SEC on November 13, 2023; |
| ● | our Current Reports on Form 8-K filed with the SEC on January
31, 2023; February 3,
2023; February 15,
2023; March 27, 2023; June
29, 2023; August 31,
2023; November 14, 2023; December
4, 2023; December 5,
2023; December 11,
2023;
December 20, 2023; January 9, 2024 and January 11, 2024; |
| ● | our definitive Proxy Statement on Schedule 14A for our 2023
Annual Meeting of Shareholders filed with the SEC on October 23, 2023; and |
| ● | the description of our common stock contained in our Registration Statement on Form
8-A filed with the SEC on September 26, 2022, including Exhibit 4.1 to our Current Report on Form 8-K12B filed with the SEC on
December 20, 2023 and any other amendments or reports filed with the SEC for the purposes of updating such description. |
Any statements made in a document
incorporated by reference in this prospectus are deemed to be modified or superseded for purposes of this prospectus to the extent that
a statement in this prospectus or in any other subsequently filed document, which is also incorporated by reference, modifies or supersedes
the statement. Any statement made in this prospectus is deemed to be modified or superseded to the extent a statement in any subsequently
filed document, which is incorporated by reference in this prospectus, modifies or supersedes such statement. Any statement so modified
or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
The information relating to
us contained in this prospectus should be read together with the information in the documents incorporated by reference. In addition,
certain information, including financial information, contained in this prospectus or incorporated by reference in this prospectus should
be read in conjunction with documents we have filed with the SEC.
We will provide to each person,
including any beneficial holder, to whom a prospectus is delivered, at no cost, upon written or oral request, a copy of any or all of
the information that has been incorporated by reference in the prospectus but not delivered with the prospectus. Requests for documents
should be by writing to or telephoning us at the following address: Silo Pharma, Inc., 677 N Washington Boulevard, Sarasota, Florida 34236,
(718) 400-9031. Exhibits to these filings will not be sent unless those exhibits have been specifically incorporated by reference in such
filings.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth
an estimate of the fees and expenses relating to the issuance and distribution of the securities being registered hereby, other than underwriting
discounts and commissions, all of which shall be borne by the registrant.
All the amounts shown are
estimates except for the SEC registration fee and FINRA fee:
| |
Amount | |
SEC registration fee | |
$ | 3,690.00 | |
FINRA filing fee | |
| 4,250.00 | |
Accounting fees and expenses | |
| * | |
Legal fees and expenses | |
| * | |
Miscellaneous fees and expenses | |
| * | |
Total expenses | |
$ | * | |
| * | These fees and expenses depend on the securities offered and
the number of issuances and accordingly cannot be estimated at this time. The applicable prospectus supplement will set forth the estimated
amount of expenses of any offering of securities. |
Item 15. Indemnification of Directors and Officers.
Section 78.7502(1) of the
Nevada Revised Statutes provides that a corporation may indemnify any person who was or is a party, or is threatened to be made a party,
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (except in
an action brought by or on behalf of the corporation) if that person 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 corporation or enterprise,
against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by
that person in connection with such action, suit or proceeding, if that person acted in good faith and in a manner which that person reasonably
believed to be in, or not opposed to, the best interests of the corporation, and, with respect to any criminal action or proceedings,
had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, alone, does not create a presumption that the person did not act in good
faith and in a manner which the person reasonably believed to be in, or not opposed to, the best interests of the corporation, and that,
with respect to any criminal action or proceeding, the person had reasonable cause to believe his action was unlawful.
Section 78.7502(2) of the
Nevada Revised Statutes provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit brought by or on behalf of the corporation to procure a judgment in its favor because
the person acted in any of the capacities set forth above, against expenses, including amounts paid in settlement and attorneys’
fees, actually and reasonably incurred by that person in connection with the defense or settlement of such action or suit, if the person
acted in accordance with the standard set forth above, except that no indemnification may be made in respect of any claim, issue or matter
as to which such person shall have been adjudged by a court of competent jurisdiction after exhaustion of all appeals therefrom to be
liable to the corporation or for amounts paid in settlement to the corporation unless and only to the extent that the court in which such
action or suit was brought or other court of competent jurisdiction determines that, in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper.
Section 78.7502(3) of the
Nevada Revised Statutes further provides that, to the extent a director or officer of a corporation has been successful on the merits
or otherwise in the defense of any action, suit or proceeding referred to in subsections 1 and 2 thereof, or in the defense of any claim,
issue or matter therein, that person shall be indemnified by the corporation against expenses (including attorneys’ fees) actually
and reasonably incurred by that person in connection therewith.
Section 78.751 of the Nevada
Revised Statutes provides that unless indemnification is ordered by a court, the determination to provide indemnification must be made
by the shareholders, by a majority vote of a quorum of the board of directors who were not parties to the action, suit or proceeding,
or in specified circumstances by independent legal counsel in a written opinion. In addition, the articles of incorporation, bylaws or
an agreement made by the corporation may provide for the payment of the expenses of a director or officer of the expenses of defending
an action as incurred upon receipt of an undertaking to repay the amount if it is ultimately determined by a court of competent jurisdiction
that the person is not entitled to indemnification. Section 78.751 of the Nevada Revised Statutes further provides that the indemnification
provided for therein shall not be deemed exclusive of any other rights to which the indemnified party may be entitled and that the scope
of indemnification shall continue as to directors, officers, employees or agents who have ceased to hold such positions, and to their
heirs, executors and administrators.
Section 78.752 of the Nevada
Revised Statutes provides that a corporation may purchase and maintain insurance on behalf of a director, officer, employee or agent of
the corporation against any liability asserted against him or incurred by him in any such capacity or arising out of his status as such
whether or not the corporation would have the authority to indemnify him against such liabilities and expenses.
Our Articles of Incorporation
and Bylaws provide that we shall, to the fullest extent permitted by the provisions of the Nevada Revised Statutes, indemnify any and
all persons whom it shall have the power to indemnify under the Nevada Revised Statutes.
We maintain a general liability
insurance policy that covers certain liabilities of directors and officers of our corporation arising out of claims based on acts or omissions
in their capacities as directors or officers.
Item 16. Exhibits.
a) Exhibits.
* |
To the extent applicable, to be filed by an amendment or as an exhibit to a document filed under the Exchange Act and incorporated by reference herein. |
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers
or sales are being made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change
in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration
statement; and
(iii) to include any material information with
respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information
in the registration statement;
provided, however, that paragraphs (a)(1)(i),
(a)(1)(ii) and (a)(1)(iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b)
that is part of the registration statement;
(2) that, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof;
(3) to remove from registration by means of a
post-effective amendment any of the securities being registered which remain unsold at the termination of the offering;
(4) That, for the purpose of determining liability
under the Securities Act of 1933 to any purchaser:
(i) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date
the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule
430B relating to an offering made pursuant to Rule 415(a)(l)(i), (vii), or (x) for the purpose of providing the information required by
Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the
date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement
that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately
prior to such effective date;
(5) That, for the purpose of determining liability
of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant
undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means
of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or
sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of
the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the
offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of
the undersigned registrant; and
(iv) Any other communication that is an offer
in the offering made by the undersigned registrant to the purchaser.
(6) That, for purposes of determining any liability
under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant
to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(7) Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
(8) 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 of 1939 in accordance with the rules and regulations prescribed by the Securities and Exchange Commission under Section 305(b)(2)
of the Trust Indenture Act of 1939.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Sarasota, State of Florida, on January 23, 2024.
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SILO PHARMA, INC. |
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By: |
/s/ Eric Weisblum |
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Eric Weisblum |
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Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each
individual whose signature appears below constitutes and appoints Eric Weisblum, his/her true and lawful attorney-in-fact and agent with
full power of substitution and re-substitution, for him/her and in his/her name, place and stead, in any and all capacities to sign any
or all amendments (including, without limitation, post-effective amendments) to this Registration Statement, any related Registration
Statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and any or all pre- or post-effective amendments
thereto, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite
and necessary to be done in and about the premises, as fully for all intents and purposes as he or she might or could do in person, hereby
ratifying and confirming that said attorney-in-fact and agent, or any substitute or substitutes for him, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature |
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Title |
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Date |
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/s/ Eric Weisblum |
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Chief Executive Officer, President and Director |
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January 23, 2024 |
Eric Weisblum |
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(Principle Executive Officer) |
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/s/ Daniel Ryweck |
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Chief Financial Officer |
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January 23, 2024 |
Daniel Ryweck |
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(Principal Financial and Accounting Officer) |
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/s/ Wayne Linsley |
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Director |
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January 23, 2024 |
Wayne Linsley |
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/s/ Dr. Kevin Muñoz |
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Director |
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January 23, 2024 |
Dr. Kevin Muñoz |
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/s/ Jeff Pavell |
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Director |
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January 23, 2024 |
Dr. Jeff Pavell |
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II-6
Exhibit 4.1
Exhibit 4.2
SILO PHARMA, INC.,
ISSUER
AND
[TRUSTEE],
TRUSTEE
INDENTURE
DATED AS OF ,
20
SENIOR DEBT SECURITIES
TABLE OF CONTENTS
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Page |
ARTICLE I DEFINITIONS |
1 |
Section 1.1 Definitions of Terms |
1 |
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ARTICLE II ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
4 |
Section 2.1 Designation and Terms of Securities |
4 |
Section 2.2 Form of Securities and Trustee’s Certificate |
5 |
Section 2.3 Denominations: Provisions for Payment |
6 |
Section 2.4 Execution and Authentications |
7 |
Section 2.5 Registration of Transfer and Exchange |
7 |
Section 2.6 Temporary Securities |
8 |
Section 2.7 Mutilated, Destroyed, Lost or Stolen Securities |
8 |
Section 2.8 Cancellation |
9 |
Section 2.9 Benefits of Indenture |
9 |
Section 2.10 Authenticating Agent |
9 |
Section 2.11 Global Securities |
10 |
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ARTICLE III REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS |
10 |
Section 3.1 Redemption |
10 |
Section 3.2 Notice of Redemption |
10 |
Section 3.3 Payment Upon Redemption |
11 |
Section 3.4 Sinking Fund |
12 |
Section 3.5 Satisfaction of Sinking Fund Payments with Securities |
12 |
Section 3.6 Redemption of Securities for Sinking Fund |
12 |
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ARTICLE IV COVENANTS |
12 |
Section 4.1 Payment of Principal, Premium and Interest |
12 |
Section 4.2 Maintenance of Office or Agency |
13 |
Section 4.3 Paying Agents |
13 |
Section 4.4 Appointment to Fill Vacancy in Office of Trustee |
14 |
Section 4.5 Compliance with Consolidation Provisions |
14 |
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ARTICLE V SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
14 |
Section 5.1 Company to Furnish Trustee Names and Addresses of
Securityholders |
14 |
Section 5.2 Preservation Of Information; Communications With
Securityholders |
14 |
Section 5.3 Reports by the Company |
14 |
Section 5.4 Reports by the Trustee |
15 |
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ARTICLE VI REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
15 |
Section 6.1 Events of Default |
15 |
Section 6.2 Collection of Indebtedness and Suits for Enforcement
by Trustee |
16 |
Section 6.3 Application of Moneys Collected |
17 |
Section 6.4 Limitation on Suits |
17 |
Section 6.5 Rights and Remedies Cumulative; Delay or Omission
Not Waiver |
18 |
Section 6.6 Control by Securityholders |
18 |
Section 6.7 Undertaking to Pay Costs |
18 |
ARTICLE VII CONCERNING THE TRUSTEE |
19 |
Section 7.1 Certain Duties and Responsibilities of Trustee |
19 |
Section 7.2 Certain Rights of Trustee |
19 |
Section 7.3 Trustee Not Responsible for Recitals or Issuance
or Securities |
20 |
Section 7.4 May Hold Securities |
21 |
Section 7.5 Moneys Held in Trust |
21 |
Section 7.6 Compensation and Reimbursement |
21 |
Section 7.7 Reliance on Officer’s Certificate |
21 |
Section 7.8 Disqualification; Conflicting Interests |
22 |
Section 7.9 Corporate Trustee Required; Eligibility |
22 |
Section 7.10 Resignation and Removal; Appointment of Successor |
22 |
Section 7.11 Acceptance of Appointment By Successor |
23 |
Section 7.12 Merger, Conversion, Consolidation or Succession
to Business |
24 |
Section 7.13 Preferential Collection of Claims Against the Company |
24 |
Section 7.14 Notice of Default |
24 |
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ARTICLE VIII CONCERNING THE SECURITYHOLDERS |
24 |
Section 8.1 Evidence of Action by Securityholders |
24 |
Section 8.2 Proof of Execution by Securityholders |
25 |
Section 8.3 Who May be Deemed Owners |
25 |
Section 8.4 Certain Securities Owned by Company Disregarded |
25 |
Section 8.5 Actions Binding on Future Securityholders |
25 |
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ARTICLE IX SUPPLEMENTAL INDENTURES |
26 |
Section 9.1 Supplemental Indentures Without the Consent of Securityholders |
26 |
Section 9.2 Supplemental Indentures With Consent of Securityholders |
26 |
Section 9.3 Effect of Supplemental Indentures |
27 |
Section 9.4 Securities Affected by Supplemental Indentures |
27 |
Section 9.5 Execution of Supplemental Indentures |
27 |
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ARTICLE X SUCCESSOR ENTITY |
28 |
Section 10.1 Company May Consolidate, Etc |
28 |
Section 10.2 Successor Entity Substituted |
28 |
Section 10.3 Evidence of Consolidation, Etc |
28 |
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ARTICLE XI SATISFACTION AND DISCHARGE |
29 |
Section 11.1 Satisfaction and Discharge of Indenture |
29 |
Section 11.2 Discharge of Obligations |
29 |
Section 11.3 Deposited Moneys to be Held in Trust |
29 |
Section 11.4 Payment of Moneys Held by Paying Agents |
29 |
Section 11.5 Repayment to Company |
29 |
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ARTICLE XII IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS |
30 |
Section 12.1 No Recourse |
30 |
ARTICLE XIII MISCELLANEOUS PROVISIONS |
30 |
Section 13.1 Effect on Successors and Assigns |
30 |
Section 13.2 Actions by Successor |
30 |
Section 13.3 Surrender of Company Powers |
30 |
Section 13.4 Notices |
31 |
Section 13.5 Governing Law |
31 |
Section 13.6 Treatment of Securities as Debt |
31 |
Section 13.7 Certificates and Opinions as to Conditions Precedent |
31 |
Section 13.8 Payments on Business Days |
31 |
Section 13.9 Conflict with Trust Indenture Act |
31 |
Section 13.10 Counterparts |
32 |
Section 13.11 Separability |
32 |
Section 13.12 Compliance Certificates |
32 |
(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 [·],
among Silo Pharma, 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 I
DEFINITIONS
Section 1.1 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
Silo Pharma, 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.
“Defaulted Interest”
has the meaning set forth in Section 2.03.
“Depositary”
means, with respect to Securities of any series for which the Company shall determine that such Securities will be issued as a Global
Security, The Depository Trust Company, another clearing agency, or any successor registered as a clearing agency under the Exchange
Act, or other applicable statute or regulation, which, in each case, shall be designated by the Company pursuant to either Section 2.01
or 2.11.
“Event of Default”
means, with respect to Securities of a particular series, any event specified in Section 6.01, continued for the period of time,
if any, therein designated.
“Exchange Act”
means the Securities and Exchange Act of 1934, as amended.
“Global Security”
means, with respect to any series of Securities, a Security executed by the Company and delivered by the Trustee to the Depositary or
pursuant to the Depositary’s instruction, all in accordance with 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,
a chief operating officer, any executive vice president, any senior vice president, any vice president, the treasurer or any assistant
treasurer, the controller or any assistant controller or the secretary or any assistant secretary.
“Officer’s Certificate”
means a certificate signed by any Officer. Each such certificate shall include the statements provided for in Section 13.07, if
and to the extent required by the provisions thereof.
“Opinion of Counsel”
means an opinion in writing subject to customary 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 provided in Article Three, 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 II
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION
AND EXCHANGE OF SECURITIES
Section 2.1 Designation
and Terms of Securities.
(a) The aggregate principal
amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or
more series up to the aggregate principal amount of Securities of that series from time to time authorized by or pursuant to a Board
Resolution or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities of any series, there
shall be established in or pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one or
more indentures supplemental hereto:
(i) the title of the
Securities of the series (which shall distinguish the Securities of that series from all other Securities);
(ii) 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);
(iii) 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;
(iv) 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;
(v) 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;
(vi) the right, if any,
to extend the interest payment periods and the duration of such extension;
(vii) 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;
(viii) 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;
(ix) the form of the
Securities of the series including the form of the Certificate of Authentication for such series;
(x) 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;
(xi) 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;
(xii) whether the Securities
are issuable as a Global Security and, in such case, the terms and the identity of the Depositary for such series;
(xiii) whether the Securities
will be convertible into or exchangeable for shares of common stock, preferred 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;
(xiv) if other than the
principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of
acceleration of the maturity thereof pursuant to Section 6.01;
(xv) 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 the capital stock of the Company or the Company’s Subsidiaries; redeem capital
stock; place restrictions on the Company’s Subsidiaries’ 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 shareholders or affiliates; issue or sell stock of the Company’s 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, asset-based or other financial ratios) provided for with respect
to the Securities of the series;
(xvi) if other than dollars,
the coin or currency in which the Securities of the series are denominated (including, but not limited to, foreign currency);
(xvii) 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
(xviii) 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 may otherwise be provided in or pursuant to any such Board Resolution or in any indentures
supplemental hereto.
If any of the terms of the
series are established by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of such action
shall be certified by the secretary or an assistant secretary of the Company and delivered to the Trustee at or prior to the delivery
of the Officer’s Certificate of the Company setting forth the terms of the series.
Securities of any particular
series may be issued at various times, with different dates on which the principal or any installment of principal is payable, with different
rates of interest, if any, or different methods by which rates of interest may be determined, with different dates on which such interest
may be payable and with different redemption dates.
Section 2.2 Form of
Securities and Trustee’s Certificate.
The Securities of any series
and the Trustee’s certificate of authentication to be borne by such Securities shall be substantially of the tenor and purport
as set forth in one or more indentures supplemental hereto or as provided in a Board Resolution, and set forth in an Officer’s
Certificate, and they may have such letters, numbers or other marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange on which Securities of that series may be listed, or to conform to usage.
Section 2.3 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. 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:
(i) 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 fifteen (15) nor less than ten (10) days prior to the date of the
proposed payment and not less than ten (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 ten (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.
(ii) 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 (15th) 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 2.4 Execution
and Authentications.
The Securities shall be
signed on behalf of the Company by one of its Officers. Signatures may be in the form of a manual 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,
if requested, 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 2.5 Registration
of Transfer and Exchange.
(a) Securities of any
series may be exchanged upon presentation thereof at the office or agency of the Company designated for such purpose, for other Securities
of such series of authorized denominations, and for a like aggregate principal amount, upon payment of a sum sufficient to cover any
tax or other governmental charge in relation thereto, all as provided in this Section. In respect of any Securities so surrendered for
exchange, the Company shall execute, the Trustee shall authenticate and such office or agency shall deliver in exchange therefor the
Security or Securities of the same series that the Securityholder making the exchange shall be entitled to receive, bearing numbers not
contemporaneously outstanding.
(b) The Company shall
keep, or cause to be kept, at its office or agency designated for such purpose a register or registers (herein referred to as the “Security
Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall register the Securities and
the transfers of Securities as in this Article provided and which at all reasonable times shall be open for inspection by the Trustee.
The registrar for the purpose of registering Securities and transfer of Securities as herein provided shall be appointed as authorized
by Board Resolution (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 Officer’s Certificate, or established in one
or more indentures supplemental to this Indenture, no service charge shall be made for any exchange or registration of transfer of Securities,
or issue of new Securities in case of partial redemption of any series, 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
fifteen (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 2.6 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, 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 2.7 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 2.8 Cancellation.
All Securities surrendered
for the purpose of payment, redemption, exchange or registration of transfer shall, if surrendered to the Company or any paying agent,
be delivered to the Trustee for cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and no Securities shall be
issued in lieu thereof except as expressly required or permitted by any of the provisions of this Indenture. On request of the Company
at the time of such surrender, the Trustee shall deliver to the Company canceled Securities held by the Trustee. In the absence of such
request the Trustee may dispose of canceled Securities in accordance with its standard procedures and deliver a certificate of disposition
to the Company. If the Company shall otherwise acquire any of the Securities, however, such acquisition shall not operate as a redemption
or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered to the Trustee for cancellation.
Section 2.9 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 or from the Trustee, this Section 2.11 shall no longer be
applicable to the Securities of such series and the Company will execute, and subject to Section 2.04, the Trustee will authenticate
and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security. In addition,
the Company may at any time determine that the Securities of any series shall no longer be represented by a Global Security and that
the provisions of this Section 2.11 shall no longer apply to the Securities of such series. In such event the Company will execute
and, subject to Section 2.04, the Trustee, upon receipt of an Officer’s Certificate evidencing such determination by the Company,
will authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations,
and in an aggregate principal amount equal to the principal amount of the Global Security of such series in exchange for such Global
Security. Upon the exchange of the Global Security for such Securities in definitive registered form without coupons, in authorized denominations,
the Global Security shall be canceled by the Trustee. Such Securities in definitive registered form issued in exchange for the Global
Security pursuant to this Section 2.11(c) shall be registered in such names and in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Securities to the Depositary for delivery to the Persons in whose names such Securities are so registered.
ARTICLE III
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
Section 3.1 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 3.2 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 Officer’s 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, upon
presentation and surrender of such Securities, that interest accrued to the date fixed for redemption will be paid as specified in said
notice, that from and after said date interest will cease to accrue and that the redemption is from a sinking fund, if such is the case.
If less than all the Securities of a series are to be redeemed, the notice to the holders of Securities of that series to be redeemed
in part shall specify the particular Securities to be so redeemed.
In case any Security is
to be redeemed in part only, the notice that relates to such Security shall state the portion of the principal amount thereof to be redeemed,
and shall state that on and after the redemption date, upon surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
(b) If less than all
the Securities of a series are to be redeemed, the Company shall give the Trustee at least 45 days’ notice (unless a shorter notice
shall be satisfactory to the Trustee) in advance of the date fixed for redemption as to the aggregate principal amount of Securities
of the series to be redeemed, and thereupon the 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 3.3 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 3.4 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 3.5 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 3.6 Redemption
of Securities for Sinking Fund.
Not less than 45 days prior
to each sinking fund payment date for any series of Securities (unless a shorter period shall be satisfactory to the Trustee), the Company
will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of the series, the portion thereof, if any, that is to be satisfied by delivering and crediting Securities of that
series pursuant to Section 3.05 and the basis for such credit and will, together with such Officer’s Certificate, deliver
to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.02 and cause notice
of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 3.02. Such
notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Section 3.03.
ARTICLE IV
COVENANTS
Section 4.1 Payment
of Principal, Premium and Interest.
The Company will duly and
punctually pay or cause to be paid the principal of (and premium, if any) and interest on the Securities of that series at the time and
place and in the manner provided herein and established with respect to such Securities. Payments of principal on the Securities may
be made at the time provided herein and established with respect to such Securities by U.S. dollar check drawn on and mailed to the address
of the Securityholder entitled thereto as such address shall appear in the Security Register, or U.S. dollar wire transfer to, a U.S.
dollar account (such wire transfer to be made only to a Securityholder of an aggregate principal amount of Securities of the applicable
series in excess of U.S. $2,000,000 and only if such Securityholder shall have furnished wire instructions to the Trustee no later than
fifteen (15) days prior to the relevant payment date). Payments of interest on the Securities may be made at the time provided herein
and established with respect to such Securities by U.S. dollar check mailed to the address of the Securityholder entitled thereto as
such address shall appear in the Security Register, or U.S. dollar wire transfer to, a U.S. dollar account (such a wire transfer to be
made only to a Securityholder of an aggregate principal amount of Securities of the applicable series in excess of U.S. $2,000,000 and
only if such Securityholder shall have furnished wire instructions in writing to the Security Registrar and the Trustee no later than
fifteen (15) days prior to the relevant payment date.
Section 4.2 Maintenance of Office or
Agency.
So long as any series of
the Securities remain Outstanding, the Company agrees to maintain an office or agency with respect to each such series and at such other
location or locations as may be designated as provided in this Section 4.02, where (i) Securities of that series may be presented
for payment, (ii) Securities of that series may be presented as herein above authorized for registration of transfer and exchange,
and (iii) notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be given
or served, such designation to continue with respect to such office or agency until the Company shall, by written notice signed by any
officer authorized to sign an Officer’s Certificate and delivered to the Trustee, designate some other office or agency for such
purposes or any of them. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, notices and demands may be made or served at the Corporate Trust Office of
the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, notices and demands. The Company
initially appoints the Corporate Trust Office of the Trustee as its paying agent with respect to the Securities.
Section 4.3 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:
(i) 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;
(ii) 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;
(iii) 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
(iv) 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 4.4 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 4.5 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 V
SECURITYHOLDERS’ LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
Section 5.1 Company
to Furnish Trustee Names and Addresses of Securityholders.
The Company will furnish
or cause to be furnished to the Trustee (a) within fifteen (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 thirty (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 fifteen (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 5.2 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 5.3 Reports
by the Company.
The Company covenants and
agrees to provide (which delivery may be via electronic mail) 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; and provided further, so long as such filings by the Company are available
on the Securities and Exchange Commission’s Electronic Data Gathering, Analysis and Retrieval System (EDGAR), such filings shall
be deemed to have been filed with the Trustee for purposes of this Section 5.03 without any further action required by the Company.
Section 5.4 Reports
by the Trustee.
(a) If required by
Section 313(a) of the Trust Indenture Act, the Trustee, within sixty (60) days after each May 1, shall 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 such May 1, which complies with Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall
comply with Section 313(b) and 313(c) of the Trust Indenture Act.
(c) A copy of each
such report shall, at the time of such transmission to Securityholders, be filed by the Trustee with the Company, with each securities
exchange upon which any Securities are listed (if so listed) and also with the Securities and Exchange Commission. The Company agrees
to notify the Trustee when any Securities become listed on any securities exchange.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 6.1 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:
(i) 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 ninety (90) days; provided, however, that a valid extension of an interest payment period
by the Company in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment of interest
for this purpose;
(ii) 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;
(iii) 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 ninety
(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;
(iv) 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
(v) 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 ninety (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 6.2 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 ninety (90) days, or (ii) in case it shall default in the payment
of the principal of (or premium, if any, on) any of the Securities of a series when the same shall have become due and payable, whether
upon maturity of the Securities of a series or upon redemption or upon declaration or otherwise then, upon demand of the Trustee, the
Company will pay to the Trustee, for the benefit of the holders of the Securities of that series, the whole amount that then shall have
been become due and payable on all such Securities for principal (and premium, if any) or interest, or both, as the case may be, with
interest upon the overdue principal (and premium, if any) and (to the extent that payment of such interest is enforceable under applicable
law) upon overdue installments of interest at the rate per annum expressed in the Securities of that series; and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of collection, and the amount payable to the Trustee under
Section 7.06.
(b) If the Company
shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be
entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and
may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the
Company or other obligor upon the Securities of that series and collect the moneys adjudged or decreed to be payable in the manner provided
by law or equity out of the property of the Company or other obligor upon the Securities of that series, wherever situated.
(c) In case of any
receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial proceedings affecting
the Company, or its creditors or property, the Trustee shall have power to intervene in such proceedings and take any action therein
that may be permitted by the court and shall (except as may be otherwise provided by law) be entitled to file such proofs of claim and
other papers and documents as may be necessary or advisable in order to have the claims of the Trustee and of the holders of Securities
of such series allowed for the entire amount due and payable by the Company under the Indenture at the date of institution of such proceedings
and for any additional amount that may become due and payable by the Company after such date, and to collect and receive any moneys or
other property payable or deliverable on any such claim, and to distribute the same after the deduction of the amount payable to the
Trustee under Section 7.06; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of
the holders of Securities of such series to make such payments to the Trustee, and, in the event that the Trustee shall consent to the
making of such payments directly to such Securityholders, to pay to the Trustee any amount due it under Section 7.06.
(d) All rights of action
and of asserting claims under this Indenture, or under any of the terms established with respect to Securities of that series, may be
enforced by the Trustee without the possession of any of such Securities, or the production thereof at any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, after provision for payment to the Trustee of any amounts due under Section 7.06, be
for the ratable benefit of the holders of the Securities of such series.
In case of an Event of Default
hereunder, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or
in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in the Indenture or in aid of
the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture
or by law.
Nothing contained herein
shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities of that series or the rights of any holder thereof or to authorize the
Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
Section 6.3 Application
of Moneys Collected.
Any moneys collected by
the Trustee pursuant to this Article with respect to a particular series of Securities shall be applied in the following order,
at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal (or premium, if any)
or interest, upon presentation of the Securities of that series, and notation thereon 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.
Section 6.4 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 ninety (90) days after its receipt of such notice, request and offer of indemnity,
shall have failed to institute any such action, suit or proceeding and (v) during such ninety (90) day period, the holders of a
majority in principal amount of the Securities of that series do not give the Trustee a direction inconsistent with the request.
Notwithstanding anything
contained herein to the contrary or any other provisions of this Indenture, the right of any holder of any Security to receive payment
of the principal of (and premium, if any) and interest on such Security, as therein provided, on or after the respective due dates expressed
in such Security (or in the case of redemption, on the redemption date), or to institute suit for the enforcement of any such payment
on or after such respective dates or redemption date, shall not be impaired or affected without the consent of such holder and by accepting
a Security hereunder it is expressly understood, intended and covenanted by the taker and holder of every Security of such series with
every other such taker and holder and the Trustee, that no one or more holders of Securities of such series shall have any right in any
manner whatsoever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of the holders
of any other of such Securities, or to obtain or seek to obtain priority over or preference to any other such holder, or to enforce any
right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all holders of Securities
of such series. For the protection and enforcement of the provisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
Section 6.5 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 6.6
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 6.7 Undertaking
to Pay Costs.
All parties to this Indenture
agree, and each holder of any Securities by such holder’s acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any
party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder,
or group of Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities of any series, or to any
suit instituted by any Securityholder for the enforcement of the payment of the principal of (or premium, if any) or interest on any
Security of such series, on or after the respective due dates expressed in such Security or established pursuant to this Indenture.
ARTICLE VII
CONCERNING THE TRUSTEE
Section 7.1 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
requirements 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 7.2 Certain Rights of Trustee.
Except as otherwise provided
in Section 7.01:
(a) The Trustee may
rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond, security or other paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(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, if requested, any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted hereunder in good faith and in reliance thereon;
(d) The Trustee shall
be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any
of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have offered 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) and 6.01(a)(2) 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 exclusively on an Officer’s Certificate).
Section 7.3 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 7.4 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 7.5 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 7.6 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 7.7
Reliance on Officer’s Certificate.
Except as otherwise provided
in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it reasonably necessary
or desirable that a matter be proved or established prior to taking or suffering or omitting to take any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part
of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate delivered to the Trustee and such
certificate, in the absence of negligence or 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 7.8 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 7.9
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 thirty (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 (6) 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 (6) 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,
including the administration of the trust created by this Indenture, shall be the successor of the Trustee hereunder, provided that such
corporation shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09, without
the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion
or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 7.13 Preferential
Collection of Claims Against the Company.
The Trustee shall comply
with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of
the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture
Act to the extent included therein.
Section 7.14 Notice
of Default
If any 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 the earlier of ninety (90) days after it occurs and thirty (30) days after it is known to a
Responsible Officer of the Trustee or written notice of it is received by 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 VIII
CONCERNING THE SECURITYHOLDERS
Section 8.1 Evidence
of Action by Securityholders.
Whenever in this Indenture
it is provided that the holders of a majority or specified percentage in aggregate principal amount of the Securities of a particular
series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking
of any other action), the fact that at the time of taking any such action the holders of such majority or specified percentage of that
series have joined therein may be evidenced by any instrument or any number of instruments of similar tenor executed by such holders
of Securities of that series in person or by agent or proxy appointed in writing.
If the Company shall solicit
from the Securityholders of any series any request, demand, authorization, direction, notice, consent, waiver or other action, the Company
may, at its option, as evidenced by an Officer’s Certificate, fix in advance a record date for such series for the determination
of Securityholders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action, but the
Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other action may be given before or after the record date, but only the Securityholders of record at the close of business
on the record date shall be deemed to be Securityholders for the purposes of determining whether Securityholders of the requisite proportion
of Outstanding Securities of that series have authorized or agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other action, and for that purpose the Outstanding Securities of that series shall be computed as of the record date;
provided, however, that no such authorization, agreement or consent by such Securityholders on the record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date.
Section 8.2 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 8.3 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 8.4 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 8.5 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 IX
SUPPLEMENTAL INDENTURES
Section 9.1 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;
(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 9.2 Supplemental
Indentures With Consent of Securityholders.
With the consent (evidenced
as provided in Section 8.01) of the holders of not less than a majority in aggregate principal amount of the Securities of each
series affected by such supplemental indenture or indentures at the time Outstanding, the Company, when authorized by a Board Resolution,
and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as then in effect) for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner not covered by
Section 9.01 the rights of the holders of the Securities of such series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the holders of each Security then Outstanding and affected thereby, (a) extend the fixed
maturity of any Securities of any series, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any premium payable upon the redemption thereof or (b) reduce the aforesaid percentage of Securities,
the holders of which are required to consent to any such supplemental indenture.
It shall not be necessary
for the consent of the Securityholders of any series affected thereby under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Section 9.3 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 9.4 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 9.5 Execution
of Supplemental Indentures.
Upon the request of the
Company, accompanied by its Board Resolutions authorizing the execution of any such supplemental indenture, and upon the filing with
the Trustee of evidence of the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall join with the Company
in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be obligated to enter into
such supplemental indenture. The Trustee, subject to the provisions of Section 7.01, may receive an Officer’s Certificate
or, if requested, an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article is
authorized or permitted by, and conforms to, the terms of this Article and that it is proper for the Trustee under the provisions
of this Article to join in the execution thereof; provided, however, that such Officer’s 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 X
SUCCESSOR ENTITY
Section 10.1 Company May Consolidate,
Etc.
Except as provided pursuant
to Section 2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one or more indentures
supplemental to this Indenture, nothing contained in this Indenture shall prevent any consolidation or merger of the Company with or
into any other Person (whether or not affiliated with the Company) or successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any sale, conveyance, transfer or other disposition of the property
of the Company or its successor or successors as an entirety, or substantially as an entirety, to any other corporation (whether or not
affiliated with the Company or its successor or successors) authorized to acquire and operate the same; provided, however, (a) the
Company hereby covenants and agrees that, upon any such consolidation or merger (in each case, if the Company is not the survivor of
such transaction), sale, conveyance, transfer or other disposition, the due and punctual payment of the principal of (premium, if any)
and interest on all of the Securities of all series in accordance with the terms of each series, according to their tenor, and the due
and punctual performance and observance of all the covenants and conditions of this Indenture with respect to each series or established
with respect to such series pursuant to Section 2.01 to be kept or performed by the Company shall be expressly assumed, by supplemental
indenture (which shall conform to the provisions of the Trust Indenture Act, as then in effect) reasonably satisfactory in form to the
Trustee executed and delivered to the Trustee by the entity formed by such consolidation, or into which the Company shall have been merged,
or by the entity which shall have acquired such property and (b) in the event that the Securities of any series then Outstanding
are convertible into or exchangeable for shares of common stock or other securities of the Company, such entity shall, by such supplemental
indenture, make provision so that the Securityholders of Securities of that series shall thereafter be entitled to receive upon conversion
or exchange of such Securities the number of securities or property to which a holder of the number of shares of common stock or other
securities of the Company deliverable upon conversion or exchange of those Securities would have been entitled had such conversion or
exchange occurred immediately prior to such consolidation, merger, sale, conveyance, transfer or other disposition.
Section 10.2 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 10.3 Evidence
of Consolidation, Etc. to Trustee.
The Trustee, subject to
the provisions of Section 7.01, may receive an Officer’s Certificate and, if requested, an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance, transfer or other disposition, and any such assumption, comply with the
provisions of this Article.
ARTICLE XI
SATISFACTION AND DISCHARGE
Section 11.1 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 11.2 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 11.3 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 11.4 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 11.5 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 (2) 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 XII
IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS
AND DIRECTORS
Section 12.1 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, shareholder, 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, shareholders, 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, shareholder, officer or director as such, because of the
creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Securities or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issuance of such Securities.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 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 13.2 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 13.3 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 13.4 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:
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 13.5 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 13.6 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 13.7 Certificates
and Opinions as to Conditions Precedent.
(a) Upon any application
or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish to
the Trustee an Officer’s Certificate stating that all conditions precedent provided for in this Indenture (other than the certificate
to be delivered pursuant to Section 13.12) relating to the proposed action have been complied with and, if requested, 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 13.8 Payments
on Business Days.
Except as provided pursuant
to Section 2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one or more indentures
supplemental to this Indenture, in any case where the date of maturity of interest or principal of any Security or the date of redemption
of any Security shall not be a Business Day, then payment of interest or principal (and premium, if any) may be made on the next succeeding
Business Day with the same force and effect as if made on the nominal date of maturity or redemption, and no interest shall accrue for
the period after such nominal date.
Section 13.9 Conflict
with Trust Indenture Act.
If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
Section 13.10 Counterparts.
This Indenture may be executed
in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same
instrument.
Section 13.11 Separability.
In case any one or more
of the provisions contained in this Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture
or of such Securities, but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision
had never been contained herein or therein.
Section 13.12 Compliance
Certificates.
The Company shall deliver
to the Trustee, within one hundred twenty (120) days after the end of each fiscal year during which any Securities of any series were
outstanding, an officer’s certificate stating whether or not the signers know of any 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 13.12, such compliance shall be determined without regard to any period of grace or requirement of notice provided
under this Indenture. If the officer of the Company signing such certificate has knowledge of such 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.
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SILO PHARMA, INC. |
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By: |
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Name: |
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Title: |
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[TRUSTEE], as Trustee |
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-32-
Exhibit 4.3
SILO PHARMA, INC.,
ISSUER
AND
[TRUSTEE],
TRUSTEE
INDENTURE
DATED AS OF ,
20
SUBORDINATED DEBT SECURITIES
TABLE OF CONTENTS
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Page |
ARTICLE I DEFINITIONS |
1 |
Section 1.1 Definitions of Terms |
1 |
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ARTICLE II ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
4 |
Section 2.1 Designation and Terms of Securities |
4 |
Section 2.2 Form of Securities and Trustee’s Certificate |
6 |
Section 2.3 Denominations: Provisions for Payment |
6 |
Section 2.4 Execution and Authentications |
7 |
Section 2.5 Registration of Transfer and Exchange |
8 |
Section 2.6 Temporary Securities |
8 |
Section 2.7 Mutilated, Destroyed, Lost or Stolen Securities |
9 |
Section 2.8 Cancellation |
9 |
Section 2.9 Benefits of Indenture |
9 |
Section 2.10 Authenticating Agent |
10 |
Section 2.11 Global Securities |
10 |
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ARTICLE III REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS |
11 |
Section 3.1 Redemption |
11 |
Section 3.2 Notice of Redemption |
11 |
Section 3.3 Payment Upon Redemption |
12 |
Section 3.4 Sinking Fund |
12 |
Section 3.5 Satisfaction of Sinking Fund Payments with Securities |
12 |
Section 3.6 Redemption of Securities for Sinking Fund |
12 |
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ARTICLE IV COVENANTS |
13 |
Section 4.1 Payment of Principal, Premium and Interest |
13 |
Section 4.2 Maintenance of Office or Agency |
13 |
Section 4.3 Paying Agents |
13 |
Section 4.4 Appointment to Fill Vacancy in Office of Trustee |
14 |
Section 4.5 Compliance with Consolidation Provisions |
14 |
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ARTICLE V SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
14 |
Section 5.1 Company to Furnish Trustee Names and Addresses of
Securityholders |
14 |
Section 5.2 Preservation Of Information; Communications With
Securityholders |
14 |
Section 5.3 Reports by the Company |
15 |
Section 5.4 Reports by the Trustee |
15 |
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ARTICLE VI REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
15 |
Section 6.1 Events of Default |
15 |
Section 6.2 Collection of Indebtedness and Suits for Enforcement
by Trustee |
16 |
Section 6.3 Application of Moneys Collected |
18 |
Section 6.4 Limitation on Suits |
18 |
Section 6.5 Rights and Remedies Cumulative; Delay or Omission
Not Waiver |
18 |
Section 6.6 Control by Securityholders |
19 |
Section 6.7 Undertaking to Pay Costs |
19 |
ARTICLE VII CONCERNING THE TRUSTEE |
19 |
Section 7.1 Certain Duties and Responsibilities of Trustee |
19 |
Section 7.2 Certain Rights of Trustee |
20 |
Section 7.3 Trustee Not Responsible for Recitals or Issuance
or Securities |
21 |
Section 7.4 May Hold Securities |
21 |
Section 7.5 Moneys Held in Trust |
21 |
Section 7.6 Compensation and Reimbursement |
21 |
Section 7.7 Reliance on Officer’s Certificate |
22 |
Section 7.8 Disqualification; Conflicting Interests |
22 |
Section 7.9 Corporate Trustee Required; Eligibility |
22 |
Section 7.10 Resignation and Removal; Appointment of Successor |
22 |
Section 7.11 Acceptance of Appointment By Successor |
23 |
Section 7.12 Merger, Conversion, Consolidation or Succession
to Business |
24 |
Section 7.13 Preferential Collection of Claims Against the Company |
24 |
Section 7.14 Notice of Default |
24 |
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ARTICLE VIII CONCERNING THE SECURITYHOLDERS |
25 |
Section 8.1 Evidence of Action by Securityholders |
25 |
Section 8.2 Proof of Execution by Securityholders |
25 |
Section 8.3 Who May be Deemed Owners |
25 |
Section 8.4 Certain Securities Owned by Company Disregarded |
26 |
Section 8.5 Actions Binding on Future Securityholders |
26 |
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ARTICLE IX SUPPLEMENTAL INDENTURES |
26 |
Section 9.1 Supplemental Indentures Without the Consent of Securityholders |
26 |
Section 9.2 Supplemental Indentures With Consent of Securityholders |
27 |
Section 9.3 Effect of Supplemental Indentures |
27 |
Section 9.4 Securities Affected by Supplemental Indentures |
27 |
Section 9.5 Execution of Supplemental Indentures |
28 |
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ARTICLE X SUCCESSOR ENTITY |
28 |
Section 10.1 Company May Consolidate, Etc |
28 |
Section 10.2 Successor Entity Substituted |
29 |
Section 10.3 Evidence of Consolidation, Etc |
29 |
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ARTICLE XI SATISFACTION AND DISCHARGE |
29 |
Section 11.1 Satisfaction and Discharge of Indenture |
29 |
Section 11.2 Discharge of Obligations |
29 |
Section 11.3 Deposited Moneys to be Held in Trust |
30 |
Section 11.4 Payment of Moneys Held by Paying Agents |
30 |
Section 11.5 Repayment to Company |
30 |
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ARTICLE XII IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS |
30 |
Section 12.1 No Recourse |
30 |
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ARTICLE XIII MISCELLANEOUS PROVISIONS |
31 |
Section 13.1 Effect on Successors and Assigns |
31 |
Section 13.2 Actions by Successor |
31 |
Section 13.3 Surrender of Company Powers |
31 |
Section 13.4 Notices |
31 |
Section 13.5 Governing Law |
31 |
Section 13.6 Treatment of Securities as Debt |
31 |
Section 13.7 Certificates and Opinions as to Conditions Precedent |
31 |
Section 13.8 Payments on Business Days |
32 |
Section 13.9 Conflict with Trust Indenture Act |
32 |
Section 13.10 Counterparts |
32 |
Section 13.11 Separability |
32 |
Section 13.12 Compliance Certificates |
32 |
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ARTICLE XIV SUBORDINATION OF SECURITIES |
32 |
Section 14.01 Subordination Terms |
32 |
| (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 [●],
among Silo Pharma, 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 I
DEFINITIONS
Section 1.1 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
Silo Pharma, 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.
“Defaulted Interest”
has the meaning set forth in Section 2.03.
“Depositary”
means, with respect to Securities of any series for which the Company shall determine that such Securities will be issued as a Global
Security, The Depository Trust Company, another clearing agency, or any successor registered as a clearing agency under the Exchange
Act, or other applicable statute or regulation, which, in each case, shall be designated by the Company pursuant to either Section 2.01
or 2.11.
“Event of Default”
means, with respect to Securities of a particular series, any event specified in Section 6.01, continued for the period of time,
if any, therein designated.
“Exchange Act”
means the Securities and Exchange Act of 1934, as amended.
“Global Security”
means, with respect to any series of Securities, a Security executed by the Company and delivered by the Trustee to the Depositary or
pursuant to the Depositary’s instruction, all in accordance with 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,
a chief operating officer, any executive vice president, any senior vice president, any vice president, the treasurer or any assistant
treasurer, the controller or any assistant controller or the secretary or any assistant secretary.
“Officer’s Certificate”
means a certificate signed by any Officer. Each such certificate shall include the statements provided for in Section 13.07, if
and to the extent required by the provisions thereof.
“Opinion of Counsel”
means an opinion in writing subject to customary 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 provided in Article Three, 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 II
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION
AND EXCHANGE OF SECURITIES
Section 2.1 Designation
and Terms of Securities.
(a) The aggregate principal
amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or
more series up to the aggregate principal amount of Securities of that series from time to time authorized by or pursuant to a Board
Resolution or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities of any series, there
shall be established in or pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one or
more indentures supplemental hereto:
(i) the title of the
Securities of the series (which shall distinguish the Securities of that series from all other Securities);
(ii) 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);
(iii) 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;
(iv) 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;
(v) 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;
(vi) the right, if any,
to extend the interest payment periods and the duration of such extension;
(vii) 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;
(viii) 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;
(ix) the form of the
Securities of the series including the form of the Certificate of Authentication for such series;
(x) 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;
(xi) 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;
(xii) whether the Securities
are issuable as a Global Security and, in such case, the terms and the identity of the Depositary for such series;
(xiii) whether the Securities
will be convertible into or exchangeable for shares of common stock, preferred 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;
(xiv) if other than the
principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of
acceleration of the maturity thereof pursuant to Section 6.01;
(xv) 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 the capital stock of the Company or the Company’s Subsidiaries; redeem capital
stock; place restrictions on the Company’s Subsidiaries’ 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 shareholders or affiliates; issue or sell stock of the Company’s 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, asset-based or other financial ratios) provided for with respect
to the Securities of the series;
(xvi) if other than dollars,
the coin or currency in which the Securities of the series are denominated (including, but not limited to, foreign currency);
(xvii) 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;
(xviii) any restrictions
on transfer, sale or assignment of the Securities of the series; and
(xix) the subordination terms
of the Securities of the series.
All Securities of any one
series shall be substantially identical except as may otherwise be provided in or pursuant to any such Board Resolution or in any indentures
supplemental hereto.
If any of the terms of the
series are established by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of such action
shall be certified by the secretary or an assistant secretary of the Company and delivered to the Trustee at or prior to the delivery
of the Officer’s Certificate of the Company setting forth the terms of the series.
Securities of any particular
series may be issued at various times, with different dates on which the principal or any installment of principal is payable, with different
rates of interest, if any, or different methods by which rates of interest may be determined, with different dates on which such interest
may be payable and with different redemption dates.
Section 2.2 Form of
Securities and Trustee’s Certificate.
The Securities of any series
and the Trustee’s certificate of authentication to be borne by such Securities shall be substantially of the tenor and purport
as set forth in one or more indentures supplemental hereto or as provided in a Board Resolution, and set forth in an Officer’s
Certificate, and they may have such letters, numbers or other marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange on which Securities of that series may be listed, or to conform to usage.
Section 2.3 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. 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:
(i) 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 fifteen (15) nor less than ten (10) days prior to the date of the
proposed payment and not less than ten (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 ten (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.
(ii) 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 (15th) 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 2.4 Execution
and Authentications.
The Securities shall be
signed on behalf of the Company by one of its Officers. Signatures may be in the form of a manual 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,
if requested, 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 2.5 Registration
of Transfer and Exchange.
(a) Securities of any
series may be exchanged upon presentation thereof at the office or agency of the Company designated for such purpose, for other Securities
of such series of authorized denominations, and for a like aggregate principal amount, upon payment of a sum sufficient to cover any
tax or other governmental charge in relation thereto, all as provided in this Section. In respect of any Securities so surrendered for
exchange, the Company shall execute, the Trustee shall authenticate and such office or agency shall deliver in exchange therefor the
Security or Securities of the same series that the Securityholder making the exchange shall be entitled to receive, bearing numbers not
contemporaneously outstanding.
(b) The Company shall
keep, or cause to be kept, at its office or agency designated for such purpose a register or registers (herein referred to as the “Security
Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall register the Securities and
the transfers of Securities as in this Article provided and which at all reasonable times shall be open for inspection by the Trustee.
The registrar for the purpose of registering Securities and transfer of Securities as herein provided shall be appointed as authorized
by Board Resolution (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 Officer’s Certificate, or established in one
or more indentures supplemental to this Indenture, no service charge shall be made for any exchange or registration of transfer of Securities,
or issue of new Securities in case of partial redemption of any series, 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
fifteen (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 2.6 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, 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 2.7 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 2.8 Cancellation.
All Securities surrendered
for the purpose of payment, redemption, exchange or registration of transfer shall, if surrendered to the Company or any paying agent,
be delivered to the Trustee for cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and no Securities shall be
issued in lieu thereof except as expressly required or permitted by any of the provisions of this Indenture. On request of the Company
at the time of such surrender, the Trustee shall deliver to the Company canceled Securities held by the Trustee. In the absence of such
request the Trustee may dispose of canceled Securities in accordance with its standard procedures and deliver a certificate of disposition
to the Company. If the Company shall otherwise acquire any of the Securities, however, such acquisition shall not operate as a redemption
or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered to the Trustee for cancellation.
Section 2.9 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 or from the Trustee, this Section 2.11 shall no longer be
applicable to the Securities of such series and the Company will execute, and subject to Section 2.04, the Trustee will authenticate
and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security. In addition,
the Company may at any time determine that the Securities of any series shall no longer be represented by a Global Security and that
the provisions of this Section 2.11 shall no longer apply to the Securities of such series. In such event the Company will execute
and, subject to Section 2.04, the Trustee, upon receipt of an Officer’s Certificate evidencing such determination by the Company,
will authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations,
and in an aggregate principal amount equal to the principal amount of the Global Security of such series in exchange for such Global
Security. Upon the exchange of the Global Security for such Securities in definitive registered form without coupons, in authorized denominations,
the Global Security shall be canceled by the Trustee. Such Securities in definitive registered form issued in exchange for the Global
Security pursuant to this Section 2.11(c) shall be registered in such names and in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Securities to the Depositary for delivery to the Persons in whose names such Securities are so registered.
ARTICLE III
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
Section 3.1 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 3.2 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 Officer’s 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, upon
presentation and surrender of such Securities, that interest accrued to the date fixed for redemption will be paid as specified in said
notice, that from and after said date interest will cease to accrue and that the redemption is from a sinking fund, if such is the case.
If less than all the Securities of a series are to be redeemed, the notice to the holders of Securities of that series to be redeemed
in part shall specify the particular Securities to be so redeemed.
In case any Security is
to be redeemed in part only, the notice that relates to such Security shall state the portion of the principal amount thereof to be redeemed,
and shall state that on and after the redemption date, upon surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
(b) If less than all
the Securities of a series are to be redeemed, the Company shall give the Trustee at least 45 days’ notice (unless a shorter notice
shall be satisfactory to the Trustee) in advance of the date fixed for redemption as to the aggregate principal amount of Securities
of the series to be redeemed, and thereupon the 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 3.3 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 3.4 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 3.5 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 3.6 Redemption
of Securities for Sinking Fund.
Not less than 45 days prior
to each sinking fund payment date for any series of Securities (unless a shorter period shall be satisfactory to the Trustee), the Company
will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of the series, the portion thereof, if any, that is to be satisfied by delivering and crediting Securities of that
series pursuant to Section 3.05 and the basis for such credit and will, together with such Officer’s Certificate, deliver
to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.02 and cause notice
of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 3.02. Such
notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Section 3.03.
ARTICLE IV
COVENANTS
Section 4.1 Payment
of Principal, Premium and Interest.
The Company will duly and
punctually pay or cause to be paid the principal of (and premium, if any) and interest on the Securities of that series at the time and
place and in the manner provided herein and established with respect to such Securities. Payments of principal on the Securities may
be made at the time provided herein and established with respect to such Securities by U.S. dollar check drawn on and mailed to the address
of the Securityholder entitled thereto as such address shall appear in the Security Register, or U.S. dollar wire transfer to, a U.S.
dollar account (such wire transfer to be made only to a Securityholder of an aggregate principal amount of Securities of the applicable
series in excess of U.S. $2,000,000 and only if such Securityholder shall have furnished wire instructions to the Trustee no later than
fifteen (15) days prior to the relevant payment date). Payments of interest on the Securities may be made at the time provided herein
and established with respect to such Securities by U.S. dollar check mailed to the address of the Securityholder entitled thereto as
such address shall appear in the Security Register, or U.S. dollar wire transfer to, a U.S. dollar account (such a wire transfer to be
made only to a Securityholder of an aggregate principal amount of Securities of the applicable series in excess of U.S. $2,000,000 and
only if such Securityholder shall have furnished wire instructions in writing to the Security Registrar and the Trustee no later than
fifteen (15) days prior to the relevant payment date.
Section 4.2 Maintenance
of Office or Agency.
So long as any series of
the Securities remain Outstanding, the Company agrees to maintain an office or agency with respect to each such series and at such other
location or locations as may be designated as provided in this Section 4.02, where (i) Securities of that series may be presented
for payment, (ii) Securities of that series may be presented as herein above authorized for registration of transfer and exchange,
and (iii) notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be given
or served, such designation to continue with respect to such office or agency until the Company shall, by written notice signed by any
officer authorized to sign an Officer’s Certificate and delivered to the Trustee, designate some other office or agency for such
purposes or any of them. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, notices and demands may be made or served at the Corporate Trust Office of
the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, notices and demands. The Company
initially appoints the Corporate Trust Office of the Trustee as its paying agent with respect to the Securities.
Section 4.3 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:
(i) 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;
(ii) 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;
(iii) 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
(iv) 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 4.4 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 4.5 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 V
SECURITYHOLDERS’ LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
Section 5.1 Company
to Furnish Trustee Names and Addresses of Securityholders.
The Company will furnish
or cause to be furnished to the Trustee (a) within fifteen (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 thirty (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 fifteen (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 5.2 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 5.3 Reports
by the Company.
The Company covenants and
agrees to provide (which delivery may be via electronic mail) 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; and provided further, so long as such filings by the Company are available
on the Securities and Exchange Commission’s Electronic Data Gathering, Analysis and Retrieval System (EDGAR), such filings shall
be deemed to have been filed with the Trustee for purposes of this Section 5.03 without any further action required by the Company.
Section 5.4 Reports
by the Trustee.
(a) If required by
Section 313(a) of the Trust Indenture Act, the Trustee, within sixty (60) days after each May 1, shall 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 such May 1, which complies with Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall
comply with Section 313(b) and 313(c) of the Trust Indenture Act.
(c) A copy of each
such report shall, at the time of such transmission to Securityholders, be filed by the Trustee with the Company, with each securities
exchange upon which any Securities are listed (if so listed) and also with the Securities and Exchange Commission. The Company agrees
to notify the Trustee when any Securities become listed on any securities exchange.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 6.1 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:
(i) 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 ninety (90) days; provided, however, that a valid extension of an interest payment period
by the Company in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment of interest
for this purpose;
(ii) 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;
(iii) 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 ninety
(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;
(iv) 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
(v) 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 ninety (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 6.2 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 ninety (90) days, or (ii) in case it shall default in the payment
of the principal of (or premium, if any, on) any of the Securities of a series when the same shall have become due and payable, whether
upon maturity of the Securities of a series or upon redemption or upon declaration or otherwise then, upon demand of the Trustee, the
Company will pay to the Trustee, for the benefit of the holders of the Securities of that series, the whole amount that then shall have
been become due and payable on all such Securities for principal (and premium, if any) or interest, or both, as the case may be, with
interest upon the overdue principal (and premium, if any) and (to the extent that payment of such interest is enforceable under applicable
law) upon overdue installments of interest at the rate per annum expressed in the Securities of that series; and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of collection, and the amount payable to the Trustee under
Section 7.06.
(b) If the Company
shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be
entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and
may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the
Company or other obligor upon the Securities of that series and collect the moneys adjudged or decreed to be payable in the manner provided
by law or equity out of the property of the Company or other obligor upon the Securities of that series, wherever situated.
(c) In case of any
receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial proceedings affecting
the Company, or its creditors or property, the Trustee shall have power to intervene in such proceedings and take any action therein
that may be permitted by the court and shall (except as may be otherwise provided by law) be entitled to file such proofs of claim and
other papers and documents as may be necessary or advisable in order to have the claims of the Trustee and of the holders of Securities
of such series allowed for the entire amount due and payable by the Company under the Indenture at the date of institution of such proceedings
and for any additional amount that may become due and payable by the Company after such date, and to collect and receive any moneys or
other property payable or deliverable on any such claim, and to distribute the same after the deduction of the amount payable to the
Trustee under Section 7.06; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of
the holders of Securities of such series to make such payments to the Trustee, and, in the event that the Trustee shall consent to the
making of such payments directly to such Securityholders, to pay to the Trustee any amount due it under Section 7.06.
(d) All rights of action
and of asserting claims under this Indenture, or under any of the terms established with respect to Securities of that series, may be
enforced by the Trustee without the possession of any of such Securities, or the production thereof at any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, after provision for payment to the Trustee of any amounts due under Section 7.06, be
for the ratable benefit of the holders of the Securities of such series.
In case of an Event of Default
hereunder, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or
in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in the Indenture or in aid of
the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture
or by law.
Nothing contained herein
shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities of that series or the rights of any holder thereof or to authorize the
Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
Section 6.3 Application
of Moneys Collected.
Any moneys collected by
the Trustee pursuant to this Article with respect to a particular series of Securities shall be applied in the following order,
at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal (or premium, if any)
or interest, upon presentation of the Securities of that series, and notation thereon of the payment, if only partially paid, and upon
surrender thereof if fully paid:
FIRST: 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;
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.
Section 6.4 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 ninety (90) days after its receipt of such notice, request and offer of indemnity,
shall have failed to institute any such action, suit or proceeding and (v) during such ninety (90) day period, the holders of a
majority in principal amount of the Securities of that series do not give the Trustee a direction inconsistent with the request.
Notwithstanding anything
contained herein to the contrary or any other provisions of this Indenture, the right of any holder of any Security to receive payment
of the principal of (and premium, if any) and interest on such Security, as therein provided, on or after the respective due dates expressed
in such Security (or in the case of redemption, on the redemption date), or to institute suit for the enforcement of any such payment
on or after such respective dates or redemption date, shall not be impaired or affected without the consent of such holder and by accepting
a Security hereunder it is expressly understood, intended and covenanted by the taker and holder of every Security of such series with
every other such taker and holder and the Trustee, that no one or more holders of Securities of such series shall have any right in any
manner whatsoever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of the holders
of any other of such Securities, or to obtain or seek to obtain priority over or preference to any other such holder, or to enforce any
right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all holders of Securities
of such series. For the protection and enforcement of the provisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
Section 6.5 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 6.6 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 6.7 Undertaking to
Pay Costs.
All parties to this Indenture
agree, and each holder of any Securities by such holder’s acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any
party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder,
or group of Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities of any series, or to any
suit instituted by any Securityholder for the enforcement of the payment of the principal of (or premium, if any) or interest on any
Security of such series, on or after the respective due dates expressed in such Security or established pursuant to this Indenture.
ARTICLE VII
CONCERNING THE TRUSTEE
Section 7.1 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
requirements 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 7.2 Certain Rights of Trustee.
Except as otherwise provided
in Section 7.01:
(a) The Trustee may
rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond, security or other paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(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, if requested, any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted hereunder in good faith and in reliance thereon;
(d) The Trustee shall
be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any
of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have offered 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) and 6.01(a)(2) 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 exclusively on an Officer’s Certificate).
Section 7.3 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 7.4 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 7.5 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 7.6 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 7.7 Reliance
on Officer’s Certificate.
Except as otherwise provided
in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it reasonably necessary
or desirable that a matter be proved or established prior to taking or suffering or omitting to take any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part
of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate delivered to the Trustee and such
certificate, in the absence of negligence or 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 7.8 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 7.9 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 thirty (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 (6) 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 (6) 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,
including the administration of the trust created by this Indenture, shall be the successor of the Trustee hereunder, provided that such
corporation shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09, without
the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion
or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 7.13 Preferential
Collection of Claims Against the Company.
The Trustee shall comply
with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of
the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture
Act to the extent included therein.
Section 7.14 Notice
of Default
If any 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 the earlier of ninety (90) days after it occurs and thirty (30) days after it is known to a
Responsible Officer of the Trustee or written notice of it is received by 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 VIII
CONCERNING THE SECURITYHOLDERS
Section 8.1 Evidence
of Action by Securityholders.
Whenever in this Indenture
it is provided that the holders of a majority or specified percentage in aggregate principal amount of the Securities of a particular
series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking
of any other action), the fact that at the time of taking any such action the holders of such majority or specified percentage of that
series have joined therein may be evidenced by any instrument or any number of instruments of similar tenor executed by such holders
of Securities of that series in person or by agent or proxy appointed in writing.
If the Company shall solicit
from the Securityholders of any series any request, demand, authorization, direction, notice, consent, waiver or other action, the Company
may, at its option, as evidenced by an Officer’s Certificate, fix in advance a record date for such series for the determination
of Securityholders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action, but the
Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other action may be given before or after the record date, but only the Securityholders of record at the close of business
on the record date shall be deemed to be Securityholders for the purposes of determining whether Securityholders of the requisite proportion
of Outstanding Securities of that series have authorized or agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other action, and for that purpose the Outstanding Securities of that series shall be computed as of the record date;
provided, however, that no such authorization, agreement or consent by such Securityholders on the record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date.
Section 8.2 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 8.3 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 8.4 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 8.5 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 IX
SUPPLEMENTAL INDENTURES
Section 9.1 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;
(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 9.2 Supplemental
Indentures With Consent of Securityholders.
With the consent (evidenced
as provided in Section 8.01) of the holders of not less than a majority in aggregate principal amount of the Securities of each
series affected by such supplemental indenture or indentures at the time Outstanding, the Company, when authorized by a Board Resolution,
and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as then in effect) for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner not covered by
Section 9.01 the rights of the holders of the Securities of such series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the holders of each Security then Outstanding and affected thereby, (a) extend the fixed
maturity of any Securities of any series, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any premium payable upon the redemption thereof or (b) reduce the aforesaid percentage of Securities,
the holders of which are required to consent to any such supplemental indenture.
It shall not be necessary
for the consent of the Securityholders of any series affected thereby under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Section 9.3 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 9.4 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 9.5 Execution
of Supplemental Indentures.
Upon the request of the
Company, accompanied by its Board Resolutions authorizing the execution of any such supplemental indenture, and upon the filing with
the Trustee of evidence of the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall join with the Company
in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be obligated to enter into
such supplemental indenture. The Trustee, subject to the provisions of Section 7.01, may receive an Officer’s Certificate
or, if requested, an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article is
authorized or permitted by, and conforms to, the terms of this Article and that it is proper for the Trustee under the provisions
of this Article to join in the execution thereof; provided, however, that such Officer’s 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 X
SUCCESSOR ENTITY
Section 10.1 Company
May Consolidate, Etc.
Except as provided pursuant
to Section 2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one or more indentures
supplemental to this Indenture, nothing contained in this Indenture shall prevent any consolidation or merger of the Company with or
into any other Person (whether or not affiliated with the Company) or successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any sale, conveyance, transfer or other disposition of the property
of the Company or its successor or successors as an entirety, or substantially as an entirety, to any other corporation (whether or not
affiliated with the Company or its successor or successors) authorized to acquire and operate the same; provided, however, (a) the
Company hereby covenants and agrees that, upon any such consolidation or merger (in each case, if the Company is not the survivor of
such transaction), sale, conveyance, transfer or other disposition, the due and punctual payment of the principal of (premium, if any)
and interest on all of the Securities of all series in accordance with the terms of each series, according to their tenor, and the due
and punctual performance and observance of all the covenants and conditions of this Indenture with respect to each series or established
with respect to such series pursuant to Section 2.01 to be kept or performed by the Company shall be expressly assumed, by supplemental
indenture (which shall conform to the provisions of the Trust Indenture Act, as then in effect) reasonably satisfactory in form to the
Trustee executed and delivered to the Trustee by the entity formed by such consolidation, or into which the Company shall have been merged,
or by the entity which shall have acquired such property and (b) in the event that the Securities of any series then Outstanding
are convertible into or exchangeable for shares of common stock or other securities of the Company, such entity shall, by such supplemental
indenture, make provision so that the Securityholders of Securities of that series shall thereafter be entitled to receive upon conversion
or exchange of such Securities the number of securities or property to which a holder of the number of shares of common stock or other
securities of the Company deliverable upon conversion or exchange of those Securities would have been entitled had such conversion or
exchange occurred immediately prior to such consolidation, merger, sale, conveyance, transfer or other disposition.
Section 10.2 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 10.3 Evidence
of Consolidation, Etc. to Trustee.
The Trustee, subject to
the provisions of Section 7.01, may receive an Officer’s Certificate and, if requested, an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance, transfer or other disposition, and any such assumption, comply with the
provisions of this Article.
ARTICLE XI
SATISFACTION AND DISCHARGE
Section 11.1 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 11.2 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 11.3 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 11.4 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 11.5 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 (2) 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 XII
IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS
AND DIRECTORS
Section 12.1 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, shareholder, 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, shareholders, 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, shareholder, officer or director as such, because of the
creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Securities or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issuance of such Securities.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 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 13.2 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 13.3 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 13.4 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:
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 13.5 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 13.6 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 13.7 Certificates
and Opinions as to Conditions Precedent.
(a) Upon any application
or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish to
the Trustee an Officer’s Certificate stating that all conditions precedent provided for in this Indenture (other than the certificate
to be delivered pursuant to Section 13.12) relating to the proposed action have been complied with and, if requested, 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 13.8 Payments
on Business Days.
Except as provided pursuant
to Section 2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one or more indentures
supplemental to this Indenture, in any case where the date of maturity of interest or principal of any Security or the date of redemption
of any Security shall not be a Business Day, then payment of interest or principal (and premium, if any) may be made on the next succeeding
Business Day with the same force and effect as if made on the nominal date of maturity or redemption, and no interest shall accrue for
the period after such nominal date.
Section 13.9 Conflict
with Trust Indenture Act.
If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
Section 13.10 Counterparts.
This Indenture may be executed
in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same
instrument.
Section 13.11 Separability.
In case any one or more
of the provisions contained in this Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture
or of such Securities, but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision
had never been contained herein or therein.
Section 13.12 Compliance
Certificates.
The Company shall deliver
to the Trustee, within one hundred twenty (120) days after the end of each fiscal year during which any Securities of any series were
outstanding, an officer’s certificate stating whether or not the signers know of any 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 13.12, such compliance shall be determined without regard to any period of grace or requirement of notice provided
under this Indenture. If the officer of the Company signing such certificate has knowledge of such a Default or Event of Default, the
certificate shall describe any such Default or Event of Default and its status.
ARTICLE XIV
SUBORDINATION OF SECURITIES
Section 14.1 Subordination
Terms.
The payment by the Company
of the principal of, premium, if any, and interest on any series of Securities issued hereunder shall be subordinated to the extent set
forth in an indenture supplemental hereto relating to such series.
IN WITNESS WHEREOF, the
parties hereto have caused this Indenture to be duly executed all as of the day and year first above written.
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SILO PHARMA, INC. |
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Title: |
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[TRUSTEE], as Trustee |
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-33-
Exhibit 5.1
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Sheppard, Mullin, Richter & Hampton LLP
30 Rockefeller Plaza
New York, New York 10112-0015
212.653.8700 main
212.653.8701 fax
www.sheppardmullin.com |
January 23, 2024
VIA ELECTRONIC MAIL
Silo Pharma, Inc.
677 N. Washington Blvd.
Sarasota, Florida 34236
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Re: |
Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as counsel to Silo Phama, Inc.,
a Nevada corporation (the “Company”), in connection with the shelf Registration Statement on Form S-3 (as amended or
supplemented, the “Registration Statement”), filed by the Company on June 12, 2023 with the Securities and Exchange
Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”).
The Registration Statement relates to the proposed issuance and sale from time to time pursuant to Rule 415 under the Securities Act,
as set forth in the Registration Statement, the prospectus contained therein (the “Base Prospectus”) and one or more
supplements to the Base Prospectus (each, a “Prospectus Supplement”) and any free-writing prospectus(es) of up to $25,000,000
aggregate offering proceeds, of the following securities of the Company (collectively, the “Securities”):
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shares of common stock, par value $0.0001 per share, of the Company (the “Common Stock”); |
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shares of preferred stock, par value $0.0001 par value, of the Company, in one or more series or classes (the “Preferred Stock”); |
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debt securities, in one or more series (the “Debt Securities”), which may be issued pursuant to an indenture to be dated on or about the date of the first issuance of Debt Securities thereunder, but which may not be guaranteed by any affiliates of the Company or any other person, by and between a trustee to be selected by the Company (the “Trustee”) and the Company, in the form filed as Exhibit 4.3 or Exhibit 4.4 to the Registration Statement (the “Indenture”); |
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warrants to purchase Common Stock, Preferred Stock or Debt Securities (the “Warrants”), which may be issued under warrant agreements (each, a “Warrant Agreement”), to be dated on or about the date of the first issuance of the applicable Warrants thereunder, by and between the Company and a warrant agent to be selected by the Company (the “Warrant Agent”); and |
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units consisting of Common Stock, Preferred Stock, Debt Securities, or Warrants (the “Units”), which may be issued under unit agreements (each, a “Unit Agreement”), to be dated on or about the date of the first issuance of the applicable Units thereunder, by and between the Company and the other parties thereto (the “Unit Parties”). |
We are delivering this opinion pursuant to the
requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
In connection with this opinion, we have examined
and relied upon originals, or copies certified to our satisfaction, of such records, documents, certificates, opinions, memoranda and
other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. As to certain factual
matters, we have relied upon certificates of officers of the Company and have not independently sought to verify such matters.
In rendering this opinion, we have assumed (i)
the genuineness and authenticity of all signatures on original documents; (ii) the authenticity of all documents submitted to us as originals;
(iii) the conformity to originals of all documents submitted to us as copies; (iv) the accuracy, completeness and authenticity of certificates
of public officials; (v) the due authorization, execution and delivery of all documents where authorization, execution and delivery are
prerequisites to the effectiveness of such documents; (vi) that the Registration Statement and any required post-effective amendment thereto
have all become effective under the Securities Act and the Base Prospectus any and all Prospectus Supplement(s) required by applicable
laws and any and all free-writing prospectus(es) related to the offer and sale of the Securities have been delivered and filed as required
by such laws; (vii) that the issuance and sale of the Securities do not violate any applicable law, are in conformity with the Company’s
then operative Articles of Incorporation (as defined below) and Bylaws, do not result in a default under or breach of any agreement or
instrument binding upon the Company and comply with any applicable requirement or restriction imposed by any court or governmental body
having jurisdiction over the Company or its properties or assets; (viii) a prospectus supplement will have been prepared and filed with
the Commission describing the Securities offered thereby; (ix) a definitive purchase, underwriting or similar agreement with respect to
any Securities offered will have been duly authorized and validly executed and delivered by the Company and the other parties thereto,
as applicable; and (x) if the holders of the Debt Securities are granted rights to inspect corporate books and records and to vote in
the election of directors or any matters on which shareholders of the Company may vote, such rights will be set forth in the Articles
of Incorporation or the Articles of Incorporation grants to the Company’s Board of Directors the power to confer such voting or
inspection rights and the Company’s Board of Directors will have conferred such rights.
With respect to our opinion as to the Common Stock
or other Securities convertible into, exercisable for, or including Common Stock, we have been advised by the Company and for purposes
of this opinion we have assumed that, at the time of issuance and sale, a sufficient number of shares of Common Stock are authorized and
available for issuance and that the consideration for the issuance and sale of the Common Stock (or for Preferred Stock or Debt Securities
convertible into Common Stock, or for Warrants exercisable for Common Stock, or Units consisting of or including Common Stock) is in an
amount that is not less than the par value of the Common Stock. With respect to our opinion as to the Preferred Stock or other Securities
convertible into, exercisable for, or including Preferred Stock, we have assumed that, (a) at the time of issuance and sale, a sufficient
number of shares of Preferred Stock are authorized, designated and available for issuance and that the consideration for the issuance
and sale of the Preferred Stock (or for Debt Securities convertible into Preferred Stock, or for Warrants exercisable for Preferred Stock
or for Units consisting of or including Preferred Stock) is in an amount that is not less than the par value of the Preferred Stock, and
(b) the rights, preferences, privileges and restrictions, including voting rights, dividend rights, conversion rights, redemption privileges
and liquidation privileges of each series of Preferred Stock will be set forth in a certificate of designation to be approved by the Company’s
Board of Directors, or in an amendment to the Company’s then operative articles of incorporation (the “Articles of Incorporation”),
to be approved by the Company’s Board of Directors and shareholders, and that one or both of these documents will be filed either
as an exhibit to an amendment to the Registration Statement to be filed after the date of this opinion or as an exhibit to a Current Report
on Form 8-K to be filed after the Registration Statement has become effective. We have also assumed with respect to the Debt Securities
offered under the Registration Statement and the related Indenture, that such securities will be executed in the form filed as an exhibit
to the Registration Statement and that the Trustee under the Indenture shall have been qualified pursuant to the Trust Indenture Act of
1939, as amended, at the time the Debt Securities are offered or issued (or such later time as may be permitted pursuant to the rules,
regulations, interpretations or positions of the Commission). We have also assumed that (i) with respect to Securities being issued upon
conversion of any convertible Preferred Stock, the applicable convertible Preferred Stock will be duly authorized, validly issued, fully
paid and nonassessable; and (ii) with respect to any Securities being issued upon conversion of any convertible Debt Securities or upon
exercise of any Warrants or relating to any Units, the applicable convertible Debt Securities or Warrants or Units will be valid and legally
binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement may be limited
by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting creditors’ rights,
and subject to general equity principles and to limitations on availability of equitable relief, including specific performance. We have
also assumed with respect to the Warrants offered under the Registration Statement, that (a) such Warrants will be issued pursuant to
a Warrant Agreement, (b) the Warrant Agreement will be filed either as an exhibit to an amendment to the Registration Statement to be
filed after the date of this opinion or as an exhibit to a Current Report on Form 8-K to be filed after the Registration Statement has
become effective, and (c) the particular terms of any series of Warrants will be set forth in a supplement to the prospectus forming a
part of the Registration Statement. We have also assumed with respect to the Units offered under the Registration Statement, that (a)
such Units will be issued pursuant to a Unit Agreement, (b) the Unit Agreement will be filed either as an exhibit to an amendment to the
Registration Statement to be filed after the date of this opinion or as an exhibit to a Current Report on Form 8-K to be filed after the
Registration Statement has become effective, and (c) the particular terms of any series of Units will be set forth in a supplement to
the prospectus forming a part of the Registration Statement.
Notwithstanding anything to the contrary, our
opinion herein is expressed solely with respect to the federal laws of the United States, the Nevada
Revised Statutes and, as to the Debt Securities constituting valid and legally binding obligations of the Company, solely with
respect to the laws of the State of New York. We express no opinion as to any provision of the Debt Securities that: (a) relates to the
subject matter jurisdiction of any federal court of the United States of America or any federal appellate court to adjudicate any controversy
related to the Debt Securities or (b) contains a waiver of an inconvenient forum. We express no opinion as to whether the laws of any
jurisdiction are applicable to the subject matter hereof. We are not rendering any opinion as to compliance with any federal or state
law, rule or regulation relating to securities, or to the sale or issuance thereof. We express no opinions concerning (i) the validity
or enforceability of any provisions contained in Indentures that purport to waive or not give effect to rights to notices, defenses, subrogation
or other rights or benefits that cannot be effectively waived under applicable law; or (ii) the validity or enforceability of any provisions
contained in Warrant Agreements or Unit Agreements that purport to waive or not give effect to rights to notices, defenses, subrogation
or other rights or benefits that cannot be effectively waived under applicable law.
On the basis of the foregoing and in reliance
thereon, and subject to the qualifications herein stated, we are of the opinion that:
1. With respect to the Common Stock offered under
the Registration Statement provided that (i) the issuance of the Common Stock has been
duly authorized by all necessary corporate action on the part of the Company; and (ii) the certificates for the Common Stock have been
duly executed by the Company, countersigned by the transfer agent therefor and duly delivered to the purchasers thereof against the requisite
payment therefor, which the Company has received, the Common Stock, when issued and sold as contemplated in the Registration Statement,
the Base Prospectus and the related Prospectus Supplement(s) and any related free-writing prospectus(es) and in accordance with any applicable
duly authorized, executed and delivered purchase, underwriting or similar agreement, or upon conversion of any convertible Preferred Stock
or convertible Debt Securities in accordance with their terms, or upon exercise of any Warrants in accordance with their terms, will be
duly authorized, validly issued, fully paid and nonassessable.
2. With respect to the Preferred Stock offered
under the Registration Statement, provided that (i) the terms and issuance of the Preferred Stock have been duly authorized by all necessary
corporate action on the part of the Company; (ii) appropriate certificates of amendment to the then operative Articles of Incorporation
relating to the terms and issuance of Preferred Stock have been duly approved by the Company’s Board of Directors and been filed
with and accepted by the State of Nevada; and (iii) the certificates for the Preferred Stock have been duly executed by the Company, countersigned
by the transfer agent therefor and duly delivered to the purchasers thereof against the requisite payment therefor, which the Company
has received, then the Preferred Stock, when issued and sold as contemplated in the Registration Statement, the Base Prospectus and the
related Prospectus Supplement(s) and any related free-writing prospectus(es) and in accordance with any applicable duly authorized, executed
and delivered purchase, underwriting or similar agreement, or upon conversion of any convertible Debt Securities in accordance with their
terms, or upon exercise of any Warrants in accordance with their terms, will be duly authorized, validly issued, fully paid and nonassessable.
3. With respect to any series of the Debt Securities
issued under the Indenture and offered under the Registration Statement, provided that (i) the Indenture has been duly authorized by the
Company and the Trustee by all necessary corporate action; (ii) the Indenture in substantially the form filed as an exhibit to the Registration
Statement, has been duly executed and delivered by the Company and the Trustee; (iii) the terms of the Debt Securities and of their issuance
and sale have been duly authorized by the Company by all necessary corporate action; (iv) the terms of the Debt Securities and of their
issuance and sale have been duly established in conformity with the Indenture; and (v) the Debt Securities have been duly executed and
delivered by the Company and authenticated by the Trustee pursuant to the Indenture and delivered against the requisite payment therefor,
which the Company has received, then the Debt Securities, when issued and sold in accordance with the Indenture and as contemplated by
the Registration Statement, the Base Prospectus and the related Prospectus Supplement(s), and a duly authorized, executed and delivered
purchase, underwriting or similar agreement, will be valid and legally binding obligations of the Company, enforceable against the Company
in accordance with their terms, or upon exercise of any Warrants in accordance with their terms, except as enforcement thereof may be
limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting creditors’
rights, and subject to general equity principles and to limitations on availability of equitable relief, including specific performance.
4. With respect to the Warrants issued under a
Warrant Agreement and offered under the Registration Statement, provided that (i) the Warrant Agreement has been duly authorized by the
Company and the Warrant Agent by all necessary corporate action; (ii) the Warrant Agreement has been duly executed and delivered by the
Company and the Warrant Agent as described in the Registration Statement, the Prospectus and the related Prospectus Supplement(s); (iii)
the issuance and terms of the Warrants have been duly authorized by the Company by all necessary corporate action; and (iv) the Warrants
have been duly executed and delivered by the Company and authenticated by the Warrant Agent pursuant to the Warrant Agreement and delivered
against the requisite payment therefor, which the Company has received, and assuming that the Warrants are then issued and sold as contemplated
in the Registration Statement, the Prospectus and the Prospectus Supplement(s), then the Warrants, when issued and sold in accordance
with the Warrant Agreement and a duly authorized, executed and delivered purchase, underwriting or similar agreement, will be valid and
legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof
may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting creditors’
rights, and subject to general equity principles and to limitations on availability of equitable relief, including specific performance.
5. With respect to the Units issued under a Unit
Agreement and offered under the Registration Statement, provided that (i) the Unit Agreement has been duly authorized by the Company and
the Unit Parties by all necessary corporate action; (ii) the Unit Agreement has been duly executed and delivered by the Company and the
Unit Parties as described in the Registration Statement, the Prospectus and the related Prospectus Supplement(s); (iii) the issuance and
terms of the Units have been duly authorized by the Company by all necessary corporate action; and (iv) the Units have been duly executed
and delivered by the Company and authenticated by the Unit Parties pursuant to the Unit Agreement and delivered against the requisite
payment therefor, which the Company has received, and assuming that the Units are then issued and sold as contemplated in the Registration
Statement, the Prospectus and the Prospectus Supplement(s), then the Units, when issued and sold in accordance with the Unit Agreement
and a duly authorized, executed and delivered purchase, underwriting or similar agreement, will constitute valid and legally binding obligations
of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by applicable
bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting creditors’ rights, and subject to
general equity principles and to limitations on availability of equitable relief, including specific performance.
The foregoing opinions are qualified to the extent
that the enforceability of any document, instrument or the Securities may be limited by or subject to bankruptcy, insolvency, fraudulent
transfer or conveyance, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally, and
general equitable or public policy principles.
We hereby consent to the filing of this opinion
as an exhibit to the above-referenced Registration Statement and to the use of our name wherever it appears in the Registration Statement,
the Base Prospectus, and any Prospectus Supplement. In giving such consent, we do not believe that we are “experts” within
the meaning of such term as used in the Securities Act or the rules and regulations of the Commission issued thereunder with respect to
any part of the Registration Statement, including this opinion as an exhibit or otherwise.
This opinion is expressed as of the date hereof
unless otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed
herein or of any subsequent changes in applicable laws.
Very truly yours,
/s/ SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
Exhibit
23.1
Consent of Independent
Registered Public Accounting Firm
We hereby consent to
the incorporation by reference in this Registration Statement on Form S-3 of our report dated March 24, 2023, relating to the consolidated
financial statements of Silo Pharma, Inc. as of and for the years ended December 31, 2022 and 2021, and to the reference to our firm
under the heading “Experts” in the prospectus.
/s/ Salberg & Company, P.A.
SALBERG & COMPANY, P.A.
Boca Raton, Florida
January 23, 2024
Exhibit 107
Calculation of Filing Fee Tables
FORM S-3
(Form Type)
SILO PHARMA, INC.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
| |
Security Type | |
Security Class Title | |
Fee Calculation Rule | | |
Amount Registered (1) | | |
Proposed Maximum Offering Price Per Share(1) | | |
Maximum Aggregate Offering Price(2) | | |
Fee Rate | | |
Amount of Registration Fee(3) | |
Fees toBe Paid | |
Equity Other Debt Other Unallocated (Universal Shelf) | |
Common Stock, par value $0.0001 per share Preferred Stock, par value $0.0001 per share Debt Securities Warrants Units (4) | |
| 457(o) | | |
| | (1) | |
| | (1) | |
$ | 25,000,000 | | |
| 0.0001476 | | |
$ | 3,690.00 | |
| |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| |
Total Offering Amounts | | |
| | | |
| | | |
| | | |
$ | | |
| |
Total Fees Previously Paid | | |
| | | |
| | | |
| | | |
| — | |
| |
Total Fee Offsets | | |
| | | |
| | | |
| | | |
| — | |
| |
Net Fee Due | | |
| | | |
| | | |
| | | |
$ | 3,690.00 | |
(1) |
An indeterminate number of securities or aggregate principal amount, as the case may be, of common stock and preferred stock, such indeterminate principal amount of debt securities, such indeterminate number of warrants to purchase common stock, preferred stock or debt securities, and such indeterminate number of units, as shall have an aggregate initial offering price not to exceed $25,000,000. If any debt securities are issued at an original issue discount, then the offering price of such debt securities shall be in such greater principal amount as shall result in an aggregate offering price not to exceed $25,000,000 less the aggregate offering price of any securities previously issued hereunder. Any securities issued hereunder may be sold separately or as units with other securities issued hereunder. The proposed maximum initial offering price per unit will be determined, from time to time, by the registrant in connection with the issuance by the registrant of the securities registered hereunder. The securities registered also include such indeterminate amounts and numbers of debt securities, common stock and preferred stock as may be issuable upon conversion, redemption, exchange, exercise or settlement of any securities registered hereunder, including under any applicable antidilution provisions. Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall be deemed to cover any additional number of securities as may be offered or issued from time to time upon stock splits, stock dividends, recapitalizations or similar transactions. |
(2) |
The proposed maximum aggregate offering price per unit will be determined from time to time by the registrant in connection with the sale and issuance by the registrant of the securities registered hereunder and is not specified as to each class of security pursuant to General Instruction II.F. of Form S-3 under the Securities Act. |
(3) |
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act. |
(4) |
Any securities registered under the registration statement may be sold separately or as units with other securities registered under the registration statement. |
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