As filed with the Securities and Exchange
Commission on February 20, 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
Summit
Therapeutics Inc.
(Exact name of registrant as specified
in its charter)
Delaware |
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37-1979717 |
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(State or Other Jurisdiction of
Incorporation or Organization) |
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(I.R.S. Employer
Identification No.) |
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601 Brickell Key Drive, Suite 1000
Miami, FL 33131
(650) 460-8308 |
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(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
Robert W. Duggan |
Mahkam Zanganeh |
Chairman and Chief Executive Officer |
Chief Executive Officer and President |
Summit Therapeutics Inc. |
Summit Therapeutics Inc. |
601 Brickell Key Drive, Suite 1000 |
601 Brickell Key Drive, Suite 1000 |
Miami, FL 33131 |
Miami, FL 33131 |
(650) 460-8308 |
(650) 460-8308 |
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
With copies to:
Adam Finerman, Esq.
Baker & Hostetler LLP
45 Rockefeller Plaza
New York, NY 10111
Tel: (212) 589-4233
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.
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Large accelerated filer |
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Accelerated filer |
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Non-accelerated filer |
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☒ |
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Smaller reporting company |
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Emerging growth company |
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If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards
provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
____________________
The Registrant hereby amends this Registration
Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment
which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission acting
pursuant to said Section 8(a), may determine.
The information in this
prospectus is not complete and may be changed. This prospectus is not an offer to sell these securities and it is not soliciting
an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
Subject to completion, dated
February 20, 2024.
PROSPECTUS
Summit Therapeutics Inc.
$450,000,000
Common Stock
Preferred Stock
Debt Securities
Depositary Shares
Warrants
Subscription Rights
Purchase Contracts
Units
and up to 2,976,190 Shares of Common
Stock by the Selling Stockholder
This prospectus provides
a general description of the common stock, preferred stock, debt securities, depositary shares,
warrants, subscription rights, purchase contracts and units that we and the selling stockholder may offer from time to time.
We will not receive any proceeds from the sale of our common stock by the selling stockholder
Each time we offer
and sell securities, we will file a supplement to this prospectus that contains specific information about the offering and the
amounts, prices and terms of the securities, and, if applicable, the selling stockholder. The supplement may also add, update or
change information contained in this prospectus with respect to that offering. You should carefully read this prospectus and the
applicable prospectus supplement before you invest in any of our securities.
We or the selling stockholder
may offer and sell these securities to or through one or more agents, underwriters, dealers or other third parties, “at the
market” to or through a market maker, into an existing trading market or otherwise directly to one or more purchasers on
a continuous or delayed basis or through a combination of methods of sale. If agents, underwriters or dealers are used to sell
our securities, we will name them and describe their compensation in a prospectus supplement. The price to the public of our securities
and the net proceeds from the sale of such securities will also be set forth in a prospectus supplement. You should carefully read
this prospectus and any accompanying prospectus supplement, together with the documents we incorporate by reference, before you
invest in our securities. The aggregate offering price of the securities we sell pursuant to this prospectus will not exceed $450,000,000
and the selling stockholder may offer and sell up to 2,976,190 shares of Common Stock from
time to time.
Our common stock is
listed on the Nasdaq Global Market under the symbol “SMMT”. On February 13, 2024, the last reported sales price of
our common stock was $4.49.
Investing in our
securities involves a high degree of risk. See “Risk Factors” beginning on page 7 of this prospectus and page 26 of
our Annual Report on Form 10-K for the year ended December 31, 2023, incorporated by reference herein as well as the other information
contained in this prospectus and the documents incorporated by reference in this prospectus or in any accompanying prospectus supplement
for a discussion of the factors you should carefully consider before making a decision to invest in our securities.
You should rely
only on the information contained in this prospectus or any prospectus supplement or amendment hereto. We have not authorized anyone
to provide you with different information.
Neither the Securities
and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2024.
TABLE OF CONTENTS
Page
ABOUT THIS
PROSPECTUS
This prospectus is
part of a registration statement on Form S-3 that we filed with the SEC using the “shelf” registration process. Under
this shelf registration process, we and the selling stockholder may, from time to time, sell any combination of the securities
described in this prospectus in one or more offerings. We will not receive any proceeds from
the sale by such selling stockholder of the securities offered by the selling stockholder described in this prospectus.
The types of securities
that we may offer and sell from time to time by this prospectus are:
| ● | debt securities, which may be senior or subordinated and secured or unsecured; |
| ● | warrants entitling the holders to purchase common stock, preferred stock or debt securities; |
| ● | subscription rights entitling the holders to purchase common stock, preferred stock, warrants or debt securities; |
We
may sell these securities either separately or in units. The preferred stock may be convertible into shares of our common stock
or another series of preferred stock. This prospectus provides a general description of the securities that may be offered. Each
time we sell securities, we will provide a supplement to this prospectus that contains specific information about the offering
and the specific terms of the securities offered. In addition, the selling stockholder may sell our securities from time to time
in one or more offerings. Each time we sell securities, we will provide a supplement to this prospectus that contains specific
information about the offering and the specific terms of the securities offered.
You should rely only
on the information provided in this prospectus, as well as the information incorporated by reference into this prospectus and any
applicable prospectus supplement. Neither we nor the selling stockholder have authorized anyone to provide you with different or
additional information or to make any representations other than those contained in this prospectus or any applicable prospectus
supplement. Neither we nor the selling stockholder take responsibility for and can provide no assurance as to the reliability of
any other information that others may give you. You should not assume that the information in this prospectus or any applicable
prospectus supplement is accurate as of any date other than the date of the applicable document. Since the date of this prospectus
and the documents incorporated by reference into this prospectus, our business, financial condition, results of operations and
prospects may have changed. Neither we nor the selling stockholder will make an offer to sell these securities in any jurisdiction
where the offer or sale is not permitted.
We may also provide
a prospectus supplement or post-effective amendment to the registration statement to add information to, or update or change information
contained in, this prospectus. You should read both this prospectus and any applicable prospectus supplement or post-effective
amendment to the registration statement together with the information incorporated by reference herein or therein. For general
information about the distribution of securities offered, please see “Plan of Distribution” below. You should
read both this prospectus and any prospectus supplement, together with the additional information described in “Information
Incorporated by Reference” and “Where You Can Find More Information” before you make any investment
decisions regarding the securities. You may obtain the information incorporated by reference into this prospectus without charge
by following the instructions under “Information Incorporated by Reference” and “Where You Can Find
More Information” below.
This prospectus summarizes
certain documents and other information, and we refer you to them for a more complete understanding of what we discuss in this
prospectus. All of the summaries are qualified in their entirety by the actual documents. In making an investment decision, you
must rely on your own examination of our Company and the terms of the offering and the securities, including the merits and risks
involved.
We are not making any
representation to any purchasers of the securities regarding the legality of an investment in the securities by such purchasers.
You should not consider any information in this prospectus to be legal, business or tax advice. You should consult your own attorney,
business advisor or tax advisor for legal, business and tax advice regarding an investment in the securities.
Unless the context
indicates otherwise, references in this prospectus to the “Company,” “Summit,” “we,” “us,”
“our” and similar terms refer to Summit Therapeutics Inc., a Delaware corporation, and its consolidated subsidiaries.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
Some of the statements
made under “Prospectus Summary,” “Use of Proceeds,” and elsewhere in this prospectus and the documents
incorporated by reference herein, including in our Annual Report on Form 10-K for the fiscal year ended December 31, 2023 and constitute forward-looking statements within the meaning of The Private Securities Litigation Reform Act of 1995.
In some cases, you can identify forward-looking statements by terminology such as “may,” “will,” “should,”
“expects,” “plans,” “anticipates,” “believes,” “estimates,” “predicts,”
“potential” “intends” or “continue,” or the negative of these terms or other comparable terminology.
These forward-looking
statements may include, but are not limited to, statements relating to our objectives, plans and strategies, statements that contain
projections of results of operations or of financial condition, expected capital needs and expenses, anticipated spending and cash runway, statements relating to the
research, development, completion and use of our products, and all statements (other than statements of historical facts) that
address activities, events or developments that we intend, expect, project, believe or anticipate will or may occur in the future.
Forward-looking statements
are not guarantees of future performance and are subject to risks and uncertainties. We have based these forward-looking statements
on assumptions and assessments made by our management in light of their experience and their perception of historical trends, current
conditions, expected future developments and other factors they believe to be appropriate.
Important factors that
could cause actual results, developments and business decisions to differ materially from those anticipated in these forward-looking
statements include, among others, those factors referred to in our Annual Report on Form 10-K for the fiscal year ended December
31, 2023 which is incorporated by reference herein.
These statements are
only current predictions and are subject to known and unknown risks, uncertainties, and other factors that may cause our or our
industry’s actual results, levels of activity, performance or achievements to be materially different from those anticipated
by the forward-looking statements. We discuss many of these risks in the documents incorporated by reference herein. You should
not rely upon forward-looking statements as predictions of future events.
Although we believe
that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee future results, levels of
activity, performance, or achievements. Except as required by law, we are under no duty to update or revise any of the forward-looking
statements, whether as a result of new information, future events or otherwise, after the date of this prospectus.
PROSPECTUS
SUMMARY
This summary highlights
certain information about us and selected information contained in the prospectus. This summary is not complete and does not contain
all of the information that may be important to you. For a more complete understanding of the Company, we encourage you to read
and consider the more detailed information included or incorporated by reference in this prospectus and our most recent consolidated
financial statements and related notes.
Overview
We
are a biopharmaceutical company focused on the discovery, development, and commercialization of patient-, physician-, caregiver-
and societal-friendly medicinal therapies intended to improve quality of life, increase potential duration of life, and resolve
serious unmet medical needs. Our pipeline of product candidates is designed with the goal to become the patient-friendly, new-era
standard-of-care medicines, in the therapeutic area of oncology.
Our
current lead development candidate is ivonescimab, a novel, potential first-in-class bispecific antibody intending to combine the
effects of immunotherapy via a blockade of PD-1 with the anti-angiogenesis effects of an anti-VEGF compound into a single molecule.
On December 5, 2022, we entered into a Collaboration and License Agreement (the “License Agreement”) with Akeso, Inc.
and its affiliates (“Akeso”) pursuant to which the Company has in-licensed ivonescimab. Through the License Agreement,
we obtained the rights to develop and commercialize ivonescimab in the United States, Canada, Europe, and Japan (the “Licensed
Territory”). The License Agreement and transaction closed in January 2023 following customary waiting periods. Our operations
will be focused on the development of ivonescimab and other future activities, as the Company determines.
We
have begun our development for ivonescimab in non-small cell lung cancer ("NSCLC"), specifically launching Phase III
clinical trials in the following indications:
a)
ivonescimab combined with chemotherapy in patients with epidermal growth factor receptor ("EGFR")-mutated, locally advanced
or metastatic non-squamous NSCLC who have progressed after treatment with a third-generation EGFR tyrosine kinase inhibitor ("TKI")
(“HARMONi”); and
b)
ivonescimab combined with chemotherapy in first-line metastatic squamous NSCLC patients (“HARMONi-3”)
As
of the date of this prospectus, both studies are enrolling and treating patients.
The
entry into the License Agreement with Akeso represents a significant change in our strategy and its future operations will be focused
on the development of ivonescimab and other future activities as the Company determines. Our portfolio includes ridinilazole, a
product candidate for treating patients suffering from Clostridioides difficile infection, also known as C. difficile infection,
or CDI. All prior development and marketing activities related to ridinilazole have been terminated. Our anti-infectives portfolio
includes SMT-738, the first of a novel class of precision antibiotics for combating multidrug resistant infections, specifically
carbapenem-resistant Enterobacteriaceae (“CRE”) infections. We will continue to pursue partnerships for further development
of SMT-738.
We
have devoted substantially all of our efforts to research and development, including clinical trials. We have not completed the
development of any drugs. We expect to continue to incur significant expenses and increasing operating losses for at least the
next few years. The net losses we incur may fluctuate significantly from quarter to quarter and year to year, due to the nature
and timing of our research and development activities. We expect that our research and development and general and administrative
expenses will continue to be significant in connection with our ongoing research and development efforts. In addition, if we obtain
marketing approval for any of our product candidates in the United States or other jurisdictions where we retain commercial rights,
and if we choose to retain those rights, we would expect to incur significant sales, marketing, distribution and outsourced manufacturing
expenses, as well as ongoing research and development expenses. We believe that our financial resources as of December 31,
2023, together with the extension of the note payable entered into on February 17, 2024 to extend the maturity date and all interest
that is payable until April 1, 2025, will fund our operating costs and working capital needs for our planned clinical trials for
ivonescimab into the first quarter of 2025, which raises substantial doubt of our ability to continue as a going concern.
As
a result, we will need to seek additional funding in the future to fund operations. Until
such time, if ever, as we can generate substantial revenue and achieve profitability,
we will need to raise additional capital to fund ongoing operations and capital needs, including the payment of the milestone payments
due to Akeso subject to the terms and conditions of the License Agreement. We continue to evaluate options to further finance our
operating cash needs for our product candidates through a combination of some, or all, of the following: equity and debt offerings,
collaborations, strategic alliances, grants and clinical trial support from government entities, philanthropic, non-government
and not-for-profit organizations, and marketing, distribution or licensing arrangements. While we believe that funds would be available
in this manner, there is no assurance, however, that additional financing will be available when needed or that we will be able
to obtain financing on acceptable terms. If we are unable to raise additional funds through equity or debt financings or other
arrangements when needed, we may be required to delay, limit, reduce, or terminate our product development, product portfolio
expansion, future commercialization efforts, or grant rights to develop and market product candidates that we would otherwise
prefer to develop and market ourselves, which could adversely affect our business prospects.
Corporate Information
Summit
Therapeutics Inc. was incorporated in Delaware on July 17, 2020. Our principal executive office is located at 601 Brickell Key
Drive, Suite 1000, Miami, FL 33131 and our phone number is (650) 460-8308. Our website is https://www.smmttx.com. Information
contained on or accessible through our website is not incorporated by reference into this prospectus and should not be considered
a part of this prospectus.
The
Securities That May Be Offered
We may offer or sell
common stock, preferred stock, debt securities, depositary shares, warrants, subscription rights, purchase contracts and units
in one or more offerings and in any combination. The aggregate offering price of the securities we sell pursuant to this prospectus
will not exceed $450,000,000. Each time securities are offered by the Company with this prospectus, we will provide a prospectus
supplement that will describe the specific amounts, prices and terms of the securities being offered and the net proceeds we expect
to receive from that sale.
The securities may
be sold from time to time pursuant to underwritten public offerings, negotiated transactions, block trades, “at the market”
offerings into an existing trading market, subscription rights offering, or a combination of these methods, to or through underwriters,
dealers or agents or directly to purchasers, or, in the case of the selling stockholder, in ordinary brokerage transactions, or
as otherwise set forth in the section of this prospectus captioned “Plan of Distribution” or in any applicable
prospectus supplement. Each prospectus supplement relating to the sale of securities by the Company will set forth the names of
any underwriters, dealers, agents or other entities involved in the sale of securities described in that prospectus supplement
and any applicable fee, commission or discount arrangements with them.
Up to 2,976,190 shares
of Common Stock may be sold pursuant to this prospectus by the selling stockholder. In connection with and as consideration for
an investment of $5,000,000 in the Company in a private placement, the selling stockholder received shares of Common Stock pursuant
to that certain Securities Purchase Agreement dated as of October 13, 2023. The selling stockholder, Manmeet S. Soni, is our Chief
Operating Officer and a member of our Board of Directors. Mr. Soni and his permitted transferees, pledgees or other successors
may from time to time offer the shares of our common stock offered by this prospectus.
Common Stock
We may offer shares
of our common stock, par value $0.01 per share, either alone or underlying other registered securities convertible into our common
stock. Holders of our common stock are entitled to receive dividends declared by our board of directors out of assets or funds
legally available for the payment of dividends, subject to rights, if any, of preferred stockholders. The holders of common stock
have no preemptive rights.
Preferred Stock
Our board of directors
has the authority, subject to limitations prescribed by Delaware law and our restated certificate of incorporation, to issue up
to 20,000,000 shares of preferred stock in one or more series, to establish from time to time the number of shares to be
included in each series, and to fix the designation, powers, preferences and rights of the shares of each series and any of its
qualifications, limitations or restrictions, in each case without further vote or action by our stockholders. Each series of preferred
stock offered by us will be more fully described in the particular prospectus supplement that will accompany this prospectus, including
redemption provisions, rights in the event of our liquidation, dissolution or winding up, voting rights and rights to convert into
common stock.
Debt Securities
We may offer one or
more series of senior or subordinated debt. The senior debt securities and the subordinated debt securities are together referred
to in this prospectus as the “debt securities.” The debt securities may be issued in one or more series with the same
or various maturities at par, at premium or at a discount. Unless otherwise specified in a prospectus supplement, the debt securities
will be our direct, unsecured obligations. The subordinated debt securities generally will be entitled to payment only after payment
of our senior debt. Senior debt generally includes all debt for money borrowed by us, except debt that is stated in the instrument
governing the terms of that debt not to be senior to, or to have the same rank in right of payment as, or to be expressly junior
to, the subordinated debt securities. We may issue debt securities that are convertible into shares of our common stock.
The debt securities
will be issued under an indenture between us and a trustee to be identified in an accompanying prospectus supplement. We have summarized
the general features of the debt securities to be governed by the form of indenture in this prospectus and the form of indenture
has been filed as an exhibit to the registration statement of which this prospectus forms a part. We encourage you to read the
indenture.
Depositary Shares
We may issue fractional
shares of preferred stock that will be represented by depositary shares and depositary receipts. Each series of depositary shares
or depositary receipts offered by us will be more fully described in the particular prospectus supplement that will accompany this
prospectus, including redemption provisions, rights in the event of our liquidation, dissolution or winding up, voting rights and
rights to convert into common stock.
Warrants
We may offer warrants
for the purchase of common stock, preferred stock or debt securities. We may offer warrants independently or together with other
securities.
Subscription Rights
We may offer subscription
rights to purchase our common stock, preferred stock, warrants or debt securities, or units consisting of some or all of these
securities. These subscription rights may be offered independently or together with any other security offered hereby and may or
may not be transferable by the stockholder receiving the subscription rights in such offering.
Purchase Contracts
We may offer purchase contracts, including
contracts obligating holders or us to purchase from the other a specific or variable number of securities at a future date or dates.
Units
We may offer units
comprised of one or more of the other classes of securities described in this prospectus in any combination. Each unit will be
issued so that the holder of the unit is also the holder of each security included in the unit.
RISK FACTORS
You should carefully
consider the risk factors affecting the Company's business which are discussed in the section entitled “Risk Factors”
in the Company’s Annual Report on Form 10-K for the year ended December 31, 2023 (the “Annual Report”), and Current
Reports on Form 8-K that we have filed or will file with the SEC, and in other documents which are incorporated by reference into
this prospectus, including all future filings we make with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act, as well as the risk factors and other information contained in or incorporated by reference into any accompanying prospectus
supplement before investing in any of our securities. The risks referenced above are not the only risks facing our Company. Additional
risk and uncertainties not currently known to us or that we currently deem to be immaterial also may materially adversely affect
our business, financial condition and/or operating results.
For more information
about our SEC filings, please see “Where You Can Find More Information” and “Incorporation of Certain
Information by Reference.”
USE OF PROCEEDS
Unless
otherwise specified in a prospectus supplement accompanying this prospectus, the net proceeds from the sale by us of the securities
to which this prospectus relates will be used for general corporate purposes. Net proceeds may be temporarily invested prior to
use. When we offer and sell the securities to which this prospectus relates, the prospectus supplement related to such offering
will set forth our intended use of the proceeds, if any, received from the sale of such securities. We will not receive any of
the proceeds from the sale of securities offered by the selling stockholder.
DESCRIPTION
OF CAPITAL STOCK
The
following description of our common stock is a summary and is qualified in its entirety by reference to our restated certificate
of incorporation, as amended (“Certificate of Incorporation”) and amended and restated bylaws (“Bylaws”),
copies of which have been filed with the SEC and are incorporated by reference as exhibits to the registration statement of which
this prospectus forms a part, and by applicable law. The terms of the offering of securities, the initial offering price and the
net proceeds to us will be contained in the prospectus supplement, and other offering material, relating to such offer.
As
of the date of this prospectus, our authorized capital stock consists of 1,000,000,000 shares
of common stock, par value $0.01 per share and 20,000,000 shares of preferred stock, par value $0.01 per share. As of February
13, 2024, the Company had 701,703,363 shares of common stock issued and outstanding and an aggregate
of 106,297,967 shares reserved for potential future issuance upon exercise of outstanding awards under its 2020 Stock Incentive
Plan, 2016 Long Term Incentive Plan, and its outstanding warrants. The Company may also issue up to an additional 11,436,088 authorized
shares reserved for potential issuance of future awards under its 2020 Stock Incentive Plan and 2020 Employee Stock Purchase Plan.
Common Stock
Annual Meeting.
Annual meetings of our stockholders are held on the date designated in accordance with our by-laws. Written notice must be mailed
to each stockholder entitled to vote not less than ten nor more than 60 days before the date of the meeting. The presence in person
or by proxy of the holders of record of a majority of our issued and outstanding shares entitled to vote at such meeting constitutes
a quorum for the transaction of business at meetings of the stockholders. Special meetings of the stockholders may be called for
any purpose by the board of directors and shall be called by the secretary upon the written request, stating the purpose of such
meeting, of the holders of at least twenty-five percent (25%) of the shares of capital stock entitled to vote in an election of
directors. Except as may be otherwise provided by applicable law, our certificate of incorporation or our by-laws, all elections
shall be decided by a plurality, and all other questions shall be decided by a majority, of the votes cast by stockholders entitled
to vote thereon at a duly held meeting of stockholders at which a quorum is present.
Voting Rights.
Each holder of common stock is entitled to one vote for each share held of record on all matters to be voted upon by stockholders.
Dividends. Subject
to the rights, powers and preferences of any outstanding preferred stock, and except as provided by law or in our certificate of
incorporation, dividends may be declared and paid or set aside for payment on the common stock out of legally available assets
or funds when and as declared by the board of directors.
Liquidation, Dissolution
and Winding Up. Subject to the rights, powers and preferences of any outstanding preferred stock, in the event of our liquidation,
dissolution or winding up, our net assets will be distributed pro rata to the holders of our common stock.
Other Rights.
Holders of the common stock have no right to:
| ● | convert the stock into any other security; |
| ● | have the stock redeemed; |
| ● | purchase additional stock; or |
| ● | maintain their proportionate ownership interest. |
The common stock does
not have cumulative voting rights. Holders of shares of the common stock are not required to make additional capital contributions.
Transfer Agent and
Registrar. Computershare Trust Company, N.A. is transfer agent and registrar for the common stock.
Preferred Stock
We are authorized to
issue “blank check” preferred stock, which may be issued in one or more series upon authorization of our board of directors.
Our board of directors is authorized to fix the designations, powers, preferences and the relative, participating, optional or
other special rights and any qualifications, limitations and restrictions of the shares of each series of preferred stock. The
authorized shares of our preferred stock are available for issuance without further action by our stockholders, unless such action
is required by applicable law or the rules of any stock exchange on which our securities may be listed. If the approval of our
stockholders is not required for the issuance of shares of our preferred stock, our board may determine not to seek stockholder
approval.
A series of our preferred
stock could, depending on the terms of such series, impede the completion of a merger, tender offer or other takeover attempt.
Our board of directors will make any determination to issue preferred shares based upon its judgment as to the best interests of
our stockholders. Our directors, in so acting, could issue preferred stock having terms that could discourage an acquisition attempt
through which an acquirer may be able to change the composition of our board of directors, including a tender offer or other transaction
that some, or a majority, of our stockholders might believe to be in their best interests or in which stockholders might receive
a premium for their stock over the then-current market price of the stock.
The preferred stock
has the terms described below unless otherwise provided in the prospectus supplement relating to a particular series of preferred
stock. You should read any applicable offering documents relating to any particular series of preferred stock being offered for
specific terms, including:
| ● | the designation and stated value per share of the preferred stock and the number of shares offered; |
| ● | the amount of liquidation preference per share; |
| ● | the price at which the preferred stock will be issued; |
| ● | the dividend rate, or method of calculation of dividends, the dates on which dividends will be
payable, whether dividends will be cumulative or noncumulative and, if cumulative, the dates from which dividends will commence
to accumulate; |
| ● | any redemption or sinking fund provisions; |
| ● | if other than the currency of the United States, the currency or currencies including composite
currencies in which the preferred stock is denominated and/or in which payments will or may be payable; |
| ● | any conversion provisions; and |
| ● | any other rights, preferences, privileges, limitations and restrictions on the preferred stock. |
The preferred stock
will, when issued, be fully paid and non-assessable. Unless otherwise specified, each series of preferred stock will rank equally
as to dividends and liquidation rights in all respects with each other series of preferred stock. The rights of holders of shares
of each series of preferred stock will be subordinate to those of our general creditors.
Rank. Unless
otherwise specified, the preferred stock will, with respect to dividend rights and rights upon our liquidation, dissolution or
winding up of our affairs, rank:
| ● | senior to our common stock and to all equity securities ranking junior to such preferred stock
with respect to dividend rights or rights upon our liquidation, dissolution or winding up of our affairs; |
| ● | on a parity with all equity securities issued by us, the terms of which specifically provide that
such equity securities rank on a parity with the preferred stock with respect to dividend rights or rights upon our liquidation,
dissolution or winding up of our affairs; and |
| ● | junior to all equity securities issued by us, the terms of which specifically provide that such
equity securities rank senior to the preferred stock with respect to dividend rights or rights upon our liquidation, dissolution
or winding up of our affairs. |
The term “equity securities”
does not include convertible debt securities.
Dividends. Holders
of the preferred stock of each series will be entitled to receive, when, as and if declared by our board of directors, cash dividends
at such rates and on such dates as may be determined by our board of directors. Different series of preferred stock may be entitled
to dividends at different rates or based on different methods of calculation. The dividend rate may be fixed or variable or both.
Dividends will be payable to the holders of record as they appear on our stock books on record dates fixed by our board of directors.
Dividends on any series
of preferred stock may be cumulative or noncumulative. If our board of directors does not declare a dividend payable on a dividend
payment date on any series of noncumulative preferred stock, then the holders of that noncumulative preferred stock will have no
right to receive a dividend for that dividend payment date, and we will have no obligation to pay the dividend accrued for that
period, whether or not dividends on that series are declared payable on any future dividend payment dates. Dividends on any series
of cumulative preferred stock will accrue from the date we initially issue shares of such series or such other date specified.
No dividends may be
declared or paid or funds set apart for the payment of any dividends on any parity securities unless full dividends have been paid
or set apart for payment on the preferred stock. If full dividends are not paid, the preferred stock will share dividends pro rata
with the parity securities.
No dividends may be
declared or paid or funds set apart for the payment of dividends on any junior securities unless full dividends for all dividend
periods terminating on or prior to the date of the declaration or payment will have been paid or declared and a sum sufficient
for the payment set apart for payment on the preferred stock.
Liquidation Preference.
Upon any voluntary or involuntary liquidation, dissolution or winding up of our affairs, then, before we make any distribution
or payment to the holders of any common stock or any other class or series of our capital stock ranking junior to the preferred
stock in the distribution of assets upon any liquidation, dissolution or winding up of our affairs, the holders of each series
of preferred stock shall be entitled to receive out of assets legally available for distribution to stockholders, liquidating distributions
in the amount of the liquidation preference per share applicable for each such series of preferred stock, plus any accrued and
unpaid dividends thereon. Such dividends will not include any accumulation in respect of unpaid noncumulative dividends for prior
dividend periods. Unless otherwise specified, after payment of the full amount of their liquidating distributions, the holders
of preferred stock will have no right or claim to any of our remaining assets. Upon any such voluntary or involuntary liquidation,
dissolution or winding up, if our available assets are insufficient to pay the amount of the liquidating distributions on all outstanding
preferred stock and the corresponding amounts payable on all other classes or series of our capital stock ranking on parity with
the preferred stock and all other such classes or series of shares of capital stock ranking on parity with the preferred stock
in the distribution of assets, then the holders of the preferred stock and all other such classes or series of capital stock will
share ratably in any such distribution of assets in proportion to the full liquidating distributions to which they would otherwise
be entitled.
Upon any such liquidation,
dissolution or winding up and if we have made liquidating distributions in full to all holders of preferred stock, we will distribute
our remaining assets among the holders of any other classes or series of capital stock ranking junior to the preferred stock according
to their respective rights and preferences and, in each case, according to their respective number of shares. For such purposes,
our consolidation or merger with or into any other corporation, trust or entity, or the sale, lease or conveyance of all or substantially
all of our property or assets will not be deemed to constitute a liquidation, dissolution or winding up of our affairs.
Redemption.
If so provided in the applicable prospectus supplement, the preferred stock will be subject to mandatory redemption or redemption
at our option, as a whole or in part, in each case upon the terms, at the times and at the redemption prices set forth in such
prospectus supplement.
The
prospectus supplement relating to a series of preferred stock that is subject to mandatory redemption will specify the number of
shares of preferred stock that shall be redeemed by us in each year commencing after a date to be specified, at a redemption price
per share to be specified, together with an amount equal to all accrued and unpaid dividends thereon to the date of redemption.
Unless the shares have a cumulative dividend, such accrued dividends will not include any accumulation in respect of unpaid dividends
for prior dividend periods. We may pay the redemption price in cash or other property, as specified in the applicable prospectus
supplement. If the redemption price for preferred stock of any series is payable only from the net proceeds of the issuance of
shares of our capital stock, the terms of such preferred stock may provide that, if no such shares of our capital stock shall have
been issued or to the extent the net proceeds from any issuance are insufficient to pay in full the aggregate redemption price
then due, such preferred stock shall automatically and mandatorily be converted into the applicable shares of our capital stock
pursuant to conversion provisions applicable to such preferred stock. Notwithstanding the foregoing, we will not redeem any preferred
stock of a series unless:
| ● | if that series of preferred stock has a cumulative dividend, we have declared and paid or contemporaneously
declare and pay or set aside funds to pay full cumulative dividends on the preferred stock for all past dividend periods and the
then current dividend period; or |
| ● | if such series of preferred stock does not have a cumulative dividend, we have declared and paid
or contemporaneously declare and pay or set aside funds to pay full dividends for the then current dividend period. |
In addition, we will
not acquire any preferred stock of a series unless:
| ● | if that series of preferred stock has a cumulative dividend, we have declared and paid or contemporaneously
declare and pay or set aside funds to pay full cumulative dividends on all outstanding shares of such series of preferred stock
for all past dividend periods and the then current dividend period; or |
| ● | if that series of preferred stock does not have a cumulative dividend, we have declared and paid
or contemporaneously declare and pay or set aside funds to pay full dividends on the preferred stock of such series for the then
current dividend period. |
However, at any time
we may purchase or acquire preferred stock of that series (1) pursuant to a purchase or exchange offer made on the same terms to
holders of all outstanding preferred stock of such series or (2) by conversion into or exchange for shares of our capital stock
ranking junior to the preferred stock of such series as to dividends and upon liquidation.
If fewer than all of
the outstanding shares of preferred stock of any series are to be redeemed, we will determine the number of shares that may be
redeemed pro rata from the holders of record of such shares in proportion to the number of such shares held or for which redemption
is requested by such holder or by any other equitable manner that we determine. Such determination will reflect adjustments to
avoid redemption of fractional shares.
Unless otherwise specified,
we will mail notice of redemption at least 30 days but not more than 60 days before the redemption date to each holder of record
of preferred stock to be redeemed at the address shown on our stock transfer books. Each notice shall state:
| ● | the number of shares and series of preferred stock to be redeemed; |
| ● | the place or places where certificates for such preferred stock are to be surrendered for payment
of the redemption price; |
| ● | that dividends on the shares to be redeemed will cease to accrue on such redemption date; |
| ● | the date on which the holder’s conversion rights, if any, as to such shares shall terminate;
and |
| ● | the specific number of shares to be redeemed from each such holder if fewer than all the shares
of any series are to be redeemed. |
If notice of redemption
has been given and we have set aside the funds necessary for such redemption in trust for the benefit of the holders of any shares
called for redemption, then from and after the redemption date, dividends will cease to accrue on such shares, and all rights of
the holders of such shares will terminate, except the right to receive the redemption price.
Voting Rights.
Holders of preferred stock will not have any voting rights, except as required by law or as otherwise determined by our board of
directors.
Unless otherwise provided
for under the terms of any series of preferred stock, no consent or vote of the holders of shares of preferred stock or any series
thereof shall be required for any amendment to our Certificate of Incorporation that would increase the number of authorized shares
of preferred stock or the number of authorized shares of any series thereof or decrease the number of authorized shares of preferred
stock or the number of authorized shares of any series thereof (but not below the number of authorized shares of preferred stock
or such series, as the case may be, then outstanding).
Conversion Rights.
The terms and conditions, if any, upon which any series of preferred stock is convertible into our common stock will be determined
by our board of directors. Such terms will include the number of shares of common stock into which the shares of preferred stock
are convertible, the conversion price, rate or manner of calculation thereof, the conversion period, provisions as to whether conversion
will be at our option or at the option of the holders of the preferred stock, the events requiring an adjustment of the conversion
price and provisions affecting conversion in the event of the redemption.
Transfer Agent and
Registrar. The transfer agent and registrar for the preferred stock will be determined by our board of directors and set forth
in the applicable prospectus supplement.
Authorized but Unissued Capital
Stock
Delaware
law does not require stockholder approval for any issuance of authorized shares. However, the listing requirements of the Nasdaq
Global Market listing rules, which would apply so long as the common stock remains listed on the Nasdaq Global Market, require
stockholder approval of certain issuances equal to or exceeding 20% of the then outstanding voting power or then outstanding number
of shares of common stock. These additional shares may be used for a variety of corporate purposes, including future public offerings,
to raise additional capital or to facilitate acquisitions.
One
of the effects of the existence of unissued and unreserved common stock or preferred stock may be to enable our board of directors
to issue shares to persons friendly to current management, which issuance could render more difficult or discourage an attempt
to obtain control of our company by means of a merger, tender offer, proxy contest or otherwise, and thereby protect the continuity
of our management and possibly deprive the stockholders of opportunities to sell their shares of common stock at prices higher
than prevailing market prices.
Certain Provisions
of Our Certificate of Incorporation and Bylaws and Delaware Law
Board of Directors. All of our directors
are elected annually. The number of directors comprising our board of directors is fixed from time to time by the board of directors.
Stockholder Nomination
of Directors. Our Bylaws provide that a stockholder must notify us in writing of any stockholder nomination of a director not
earlier than the 120th day and not later than the 90th day prior to the first anniversary of the
preceding year’s annual meeting; provided, that if the date of the annual meeting is advanced or delayed by more than 30
days from such anniversary date, notice by the stockholder to be timely must be so delivered not earlier than the 120th day
prior to the date of such annual meeting and not later than the 90th day prior to the date of such meeting and
(y) the 10th day following the day on which public announcement of the date of such annual meeting is first made
by us.
Exclusive forum
provision. Our Certificate of Incorporation provides that, unless we consent in writing to the selection of an alternative
forum, the Court of Chancery of the State of Delaware (or, if the Court of Chancery of the State of Delaware does not have jurisdiction,
the federal district court for the District of Delaware) shall be the sole and exclusive forum for the following types of proceedings:
(1) any derivative action or proceeding brought on behalf of our company, (2) any action asserting a claim of breach of a fiduciary
duty owed by any of our directors, officers, employees or stockholders to our company or our stockholders, (3) any action asserting
a claim arising pursuant to any provision of the General Corporation Law of the State of Delaware or as to which the General Corporation
Law of the State of Delaware confers jurisdiction on the Court of Chancery of the State of Delaware, or (4) any action asserting
a claim arising pursuant to any provision of our Certificate of Incorporation or Bylaws (in each case, as they may be amended from
time to time) or governed by the internal affairs doctrine. These choice of forum provisions will not apply to suits brought to
enforce a duty or liability created by the Exchange Act. Furthermore, Section 22 of the Securities Act creates concurrent jurisdiction
for federal and state courts over all such Securities Act actions. Accordingly, both state and federal courts have jurisdiction
to entertain such claims. To prevent having to litigate claims in multiple jurisdictions and the threat of inconsistent or contrary
rulings by different courts, among other considerations, our Certificate of Incorporation provides that, unless we consent in writing
to the selection of an alternative forum, the federal district courts of the United States of America shall, to the fullest extent
permitted by law, be the sole and exclusive forum for the resolution of any claims arising under the Securities Act. While the
Delaware courts have determined that such choice of forum provisions are facially valid, a stockholder may nevertheless seek to
bring a claim in a venue other than those designated in the exclusive forum provisions. In such instance, we would expect to vigorously
assert the validity and enforceability of the exclusive forum provisions of our Certificate of Incorporation. This may require
significant additional costs associated with resolving such action in other jurisdictions and there can be no assurance that the
provisions will be enforced by a court in those other jurisdictions.
DESCRIPTION
OF DEBT SECURITIES
The following description,
together with the additional information we include in any applicable prospectus supplement, summarizes certain general terms and
provisions of the debt securities that we may offer under this prospectus. When we offer to sell a particular series of debt securities,
we will describe the specific terms of the series in a supplement to this prospectus. We will indicate in the supplement to what
extent the general terms and provisions described in this prospectus apply to a particular series of debt securities.
We may issue debt securities
either separately, or together with, or upon the conversion or exercise of or in exchange for, other securities described in this
prospectus. Debt securities may be our senior or subordinated obligations and, unless otherwise specified in a supplement to this
prospectus, the debt securities will be our direct, unsecured obligations and may be issued in one or more series. We may issue
debt securities that are convertible into shares of our common stock.
The debt securities
will be issued under an indenture between us and a trustee to be specified in an accompanying prospectus supplement. We have summarized
select portions of the indenture below. The summary is not complete. The form of the indenture has been filed as an exhibit to
the registration statement of which this prospectus forms a part and you should read the indenture for provisions that may be important
to you. Capitalized terms used in the summary and not defined herein have the meanings specified in the indenture.
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 a resolution of our board of directors, in an officer’s certificate, or by a supplemental indenture.
The particular terms of each series of debt securities will be described in a prospectus supplement relating to such series (including
any pricing supplement or term sheet). In addition, any changes to the description below also will be set forth in the applicable
prospectus supplement.
We can issue an unlimited
amount of debt securities under the indenture that may be in one or more series with the same or various maturities, at par, at
a premium, or at a discount. We will set forth in a prospectus supplement (including any pricing supplement or term sheet) relating
to any series of debt securities being offered the aggregate principal amount and the following terms of the debt securities, if
applicable:
| ● | the title and ranking of the debt securities (including the terms of any subordination provisions); |
| ● | the price or prices (expressed as a percentage of the principal amount) at which we will sell the
debt securities; |
| ● | any limit upon the aggregate principal amount of the debt securities; |
| ● | the date or dates on which the principal of the securities of the series is payable; |
| ● | the rate or rates (which may be fixed or variable) per annum or the method used to determine the
rate or rates (including any commodity, commodity index, stock exchange index or financial index) at which the debt securities
will bear interest, the date or dates from which interest will accrue, the date or dates on which interest will commence and be
payable and any regular record date for the interest payable on any interest payment date; |
| ● | the place or places where principal of, and interest, if any, on the debt securities will be payable
(and the method of such payment), where the securities of such series may be surrendered for registration of transfer or exchange,
and where notices and demands to us in respect of the debt securities may be delivered; |
| ● | the period or periods within which, the price or prices at which and the terms and conditions upon
which we may redeem the debt securities; |
| ● | any obligation we have to redeem or purchase the debt securities pursuant to any sinking fund or
analogous provisions or at the option of a holder of debt securities 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; |
| ● | the dates on which and the price or prices at which we will repurchase debt securities at the option
of the holders of debt securities and other detailed terms and provisions of these repurchase obligations; |
| ● | the denominations in which the debt securities will be issued, if other than denominations of $1,000
and any integral multiple thereof; |
| ● | whether the debt securities will be issued in the form of certificated debt securities or global
debt securities; |
| ● | the portion of principal amount of the debt securities payable upon declaration of acceleration
of the maturity date, if other than the principal amount; |
| ● | the currency of denomination of the debt securities, which may be United States dollars or any
foreign currency, and if such currency of denomination is a composite currency, the agency or organization, if any, responsible
for overseeing such composite currency; |
| ● | the designation of the currency, currencies or currency units in which payment of principal of,
and premium and interest on the debt securities will be made; |
| ● | if payments of principal of, or premium or interest on the debt securities will be made in one
or more currencies or currency units other than those in which the debt securities are denominated, the manner in which the exchange
rate with respect to these payments will be determined; |
| ● | the manner in which the amounts of payment of principal of, and premium, if any, or interest on
the debt securities will be determined, if these amounts may be determined by reference to an index based on a currency or currencies
or by reference to a commodity, commodity index, stock exchange index or financial index; |
| ● | any provisions relating to any security provided for the debt securities; |
| ● | any addition to, deletion of or change in the Events of Default described in this prospectus or
in the indenture with respect to the debt securities and any change in the acceleration provisions described in this prospectus
or in the indenture with respect to the debt securities; |
| ● | any addition to, deletion of or change in the covenants described in this prospectus or in the
indenture with respect to the debt securities; |
| ● | any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents
with respect to the debt securities; |
| ● | any other terms of the debt securities, which may supplement, modify or delete any provision of
the indenture as it applies to that series, including any terms that may be required under applicable law or regulations or advisable
in connection with the marketing of the securities; and |
| ● | whether any of our direct or indirect subsidiaries will guarantee the debt securities of that series,
including the terms of subordination, if any, of such guarantees. |
We may issue debt securities
that provide for an amount less than their stated principal amount to be due and payable upon declaration of acceleration of their
maturity pursuant to the terms of the indenture. We will provide you with information on the federal income tax considerations
and other special considerations applicable to any of these debt securities in the applicable prospectus supplement.
If we denominate the
purchase price of any of the debt securities in a foreign currency or currencies or a foreign currency unit or units, or if the
principal of and any premium and interest on any series of debt securities is payable in a foreign currency or currencies or a
foreign currency unit or units, we will provide you with information on the restrictions, elections, general tax considerations,
specific terms and other information with respect to that issue of debt securities and such foreign currency or currencies or foreign
currency unit or units in the applicable prospectus supplement.
Transfer and Exchange
Each debt security
will be represented by either one or more global securities registered in the name of a clearing agency registered under the Exchange
Act, which we refer to as the depositary, or a nominee of the depositary (we will refer to any debt security represented by a global
debt security as a “book-entry debt security”), or a certificate issued in definitive registered form (we will refer
to any debt security represented by a certificated security as a “certificated debt security”) as set forth in the
applicable prospectus supplement. Except as set forth under the heading “Global Debt Securities and Book-Entry System”
below, book-entry debt securities will not be issuable in certificated form.
Certificated Debt Securities
You may transfer or
exchange certificated debt securities at any office we maintain for this purpose in accordance with the terms of the indenture.
No service charge will be made for any transfer or exchange of certificated debt securities, but we may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection with a transfer or exchange.
You may effect the
transfer of certificated debt securities and the right to receive the principal of, and premium and interest on certificated debt
securities only by surrendering the certificate representing those certificated debt securities and either reissuance by us or
the trustee of the certificate to the new holder or the issuance by us or the trustee of a new certificate to the new holder.
Global Debt Securities and Book-Entry System
Each global debt security
representing book-entry debt securities will be deposited with, or on behalf of, the depositary, and registered in the name of
the depositary or a nominee of the depositary.
Covenants
We will set forth in the applicable prospectus
supplement any restrictive covenants applicable to any issue of debt securities.
Consolidation, Merger and Sale of Assets
We may not consolidate
with or merge with or into, or convey, transfer or lease all or substantially all of our properties and assets to any person, which
we refer to as a successor person, unless:
| ● | we are the surviving corporation or the successor person (if other than us) is a corporation organized
and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes our obligations on the debt securities
and under the indenture; and |
| ● | immediately after giving effect to the transaction, no Default or Event of Default, shall have
occurred and be continuing. |
Notwithstanding the above, any of our subsidiaries
may consolidate with, merge into or transfer all or part of its assets or properties to us.
Events of Default
“Event of Default”
means with respect to any series of debt securities, any of the following:
| ● | default in the payment of any interest upon any debt security of that series when it becomes due
and payable, and continuance of such default for a period of 30 days (unless the entire amount of the payment is deposited by us
with the trustee or with a paying agent prior to the expiration of the 30-day period); |
| ● | default in the payment of principal of any security of that series at its maturity; |
| ● | default in the performance or breach of any other covenant or warranty by us in the indenture (other
than a covenant or warranty that has been included in the indenture solely for the benefit of a series of debt securities other
than that series), which default continues uncured for a period of 60 days after we receive written notice from the trustee, or
we and the trustee receive written notice from the holders of not less than 25% in principal amount of the outstanding debt securities
of that series as provided in the indenture; |
| ● | certain voluntary or involuntary events of bankruptcy, insolvency or reorganization of us; and |
| ● | any other Event of Default provided with respect to debt securities of that series that is described
in the applicable prospectus supplement. |
No Event of Default
with respect to a particular series of debt securities (except as to certain events of bankruptcy, insolvency or reorganization)
necessarily constitutes an Event of Default with respect to any other series of debt securities. The occurrence of certain Events
of Default or an acceleration under the indenture may constitute an event of default under certain indebtedness of ours or our
subsidiaries outstanding from time to time.
We will provide the
trustee written notice of any Default or Event of Default within 30 days of becoming aware of the occurrence of such Default or
Event of Default, which notice will describe in reasonable detail the status of such Default or Event of Default and what action
we are taking or propose to take in respect thereof.
If an Event of Default
with respect to debt securities of any series at the time outstanding occurs and is continuing, then the trustee or the holders
of not less than 25% in principal amount of the outstanding debt securities of that series may, by a notice in writing to us (and
to the trustee if given by the holders), declare to be due and payable immediately the principal of (or, if the debt securities
of that series are discount securities, that portion of the principal amount as may be specified in the terms of that series) and
accrued and unpaid interest, if any, on all debt securities of that series. In the case of an Event of Default resulting from certain
events of bankruptcy, insolvency or reorganization, the principal (or such specified amount) of and accrued and unpaid interest,
if any, on all outstanding debt securities will become and be immediately due and payable without any declaration or other act
on the part of the trustee or any holder of outstanding debt securities. At any time after a declaration of acceleration with respect
to debt securities of any series has been made, but before a judgment or decree for payment of the money due has been obtained
by the trustee, the holders of a majority in principal amount of the outstanding debt securities of that series may rescind and
annul the acceleration if all Events of Default, other than the non-payment of accelerated principal and interest, if any, with
respect to debt securities of that series, have been cured or waived as provided in the indenture. We refer you to the prospectus
supplement relating to any series of debt securities that are discount securities for the particular provisions relating to acceleration
of a portion of the principal amount of such discount securities upon the occurrence of an Event of Default.
The indenture provides
that the trustee may refuse to perform any duty or exercise any of its rights or powers under the indenture unless the trustee
receives indemnity satisfactory to it against any cost, liability or expense which might be incurred by it in performing such duty
or exercising such right or power. Subject to certain rights of the trustee, 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.
No holder of any debt
security of any series will have any right to institute any proceeding, judicial or otherwise, with respect to the indenture or
for the appointment of a receiver or trustee, or for any remedy under the indenture, unless:
| ● | that holder has previously given to the trustee written notice of a continuing Event of Default
with respect to debt securities of that series; and |
| ● | the holders of not less than 25% in principal amount of the outstanding debt securities of that
series have made written request, and offered indemnity or security satisfactory to the trustee, to the trustee to institute the
proceeding as trustee, and the trustee has not received from the holders of not less than a majority in principal amount of the
outstanding debt securities of that series a direction inconsistent with that request and has failed to institute the proceeding
within 60 days. |
Notwithstanding any
other provision in the indenture, the holder of any debt security will have an absolute and unconditional right to receive payment
of the principal of, and premium and any interest on that debt security on or after the due dates expressed in that debt security
and to institute suit for the enforcement of payment.
The indenture requires
us, within 120 days after the end of our fiscal year, to furnish to the trustee a statement as to compliance with the indenture.
If a Default or Event of Default occurs and is continuing with respect to the securities of any series and if it is known to a
responsible officer of the trustee, the trustee shall send to each securityholder of the securities of that series notice of a
Default or Event of Default within 90 days after it occurs or, if later, after a responsible officer of the trustee has knowledge
of such Default or Event of Default. The indenture provides that the trustee may withhold notice to the holders of debt securities
of any series of any Default or Event of Default (except in payment on any debt securities of that series) with respect to debt
securities of that series if the trustee determines in good faith that withholding notice is in the interest of the holders of
those debt securities.
Modification and Waiver
We and the trustee
may modify, amend or supplement the indenture or the debt securities of any series without the consent of any holder of any debt
security:
| ● | to cure any ambiguity, defect or inconsistency; |
| ● | to comply with covenants in the indenture described above under the heading “Consolidation,
Merger and Sale of Assets”; |
| ● | to provide for uncertificated securities in addition to or in place of certificated securities; |
| ● | to add guarantees with respect to debt securities of any series or secure debt securities of any
series; |
| ● | to surrender any of our rights or powers under the indenture; |
| ● | to add covenants or events of default for the benefit of the holders of debt securities of any
series; |
| ● | to comply with the applicable procedures of the applicable depositary; |
| ● | to make any change that does not adversely affect the rights of any holder of debt securities; |
| ● | to provide for the issuance of and establish the form and terms and conditions of debt securities
of any series as permitted by the indenture; |
| ● | to effect the appointment of a successor trustee with respect to the debt securities of any series
and to add to or change any of the provisions of the indenture to provide for or facilitate administration by more than one trustee; |
| ● | to comply with requirements of the SEC in order to effect or maintain the qualification of the
indenture under the Trust Indenture Act; |
| ● | to add to, change or eliminate any provision of the indenture or the debt securities of any series
in accordance with the Trust Indenture Act, or to comply with the provisions of DTC, Euroclear or Clearstream or the Trustee with
respect to provisions of the indenture or the debt securities of any series relating to transfers or exchanges of the debt securities
of such series or beneficial interests in such securities; or |
| ● | to conform any provision of the indenture, insofar as it relates to the debt securities of any
series, to the description of the debt securities of such series in the prospectus supplement relating to the offering of the debt
securities of such series. |
We may modify and amend
the indenture with the consent of the holders of at least a majority in principal amount of the outstanding debt securities of
each series affected by the modifications or amendments. We may not make any modification or amendment without the consent of the
holders of each affected debt security then outstanding if that amendment will:
| ● | reduce the amount of debt securities whose holders must consent to an amendment, supplement or
waiver; |
| ● | reduce the rate of or extend the time for payment of interest (including default interest) on any
debt security; |
| ● | reduce the principal of or premium on or change the fixed maturity of any debt security or reduce
the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation with respect to any series
of debt securities; |
| ● | reduce the principal amount of discount securities payable upon acceleration of maturity; |
| ● | waive a default in the payment of the principal of, or premium or interest on any debt security
(except a rescission of acceleration of the debt securities of any series by the holders of at least a majority in aggregate principal
amount of the then outstanding debt securities of that series and a waiver of the payment default that resulted from such acceleration); |
| ● | make the principal of or premium or interest on any debt security payable in currency other than
that stated in the debt security; |
| ● | make any change to certain provisions of the indenture relating to, among other things, the right
of holders of debt securities to receive payment of the principal of, or premium and interest on those debt securities and to institute
suit for the enforcement of any such payment; or |
| ● | waive a redemption payment with respect to any debt security. |
Except for certain
specified provisions, the holders of at least a majority in principal amount of the outstanding debt securities of any series,
may on behalf of the holders of all debt securities of that series, waive our compliance with provisions of the indenture. The
holders of a majority in principal amount of the outstanding debt securities of any series, may on behalf of the holders of all
the debt securities of such series, waive any past default under the indenture with respect to that series and its consequences,
except a default in the payment of the principal of, premium or any interest on any debt security of that series; provided, however,
that the holders of a majority in principal amount of the outstanding debt securities of any series may rescind an acceleration
and its consequences, including any related payment default that resulted from the acceleration.
Defeasance of Debt Securities and Certain Covenants in Certain
Circumstances
Legal Defeasance
The indenture provides
that, unless otherwise provided by the terms of the applicable series of debt securities, we may be discharged from any and all
obligations in respect of the debt securities of any series (subject to certain exceptions). We will be so discharged upon the
irrevocable deposit with the trustee, in trust, of money and/or U.S. government obligations or, in the case of debt securities
denominated in a single currency other than U.S. dollars, government obligations that issued or caused to be issued such currency,
that, through the payment of interest and principal in accordance with their terms, will provide money or U.S. government obligations
in an amount sufficient in the opinion of a nationally recognized firm of independent public accountants or investment bank to
pay and discharge each installment of principal, premium and interest on and any mandatory sinking fund payments in respect of
the debt securities of that series on the stated maturity of those payments in accordance with the terms of the indenture and those
debt securities.
This discharge may
occur only if, among other things, we have delivered to the trustee an opinion of counsel stating that we have received from,
or there has been published by, the United States Internal Revenue Service a ruling or, since the date of execution of the indenture,
there has been a change in the applicable United States federal income tax law, in either case to the effect that, and based thereon,
such opinion shall confirm that, the holders of the debt securities of that series will not recognize income, gain or loss for
United States federal income tax purposes as a result of the deposit, defeasance and discharge and will be subject to United States
federal income tax on the same amounts and in the same manner and at the same times as would have been the case if the deposit,
defeasance and discharge had not occurred.
Defeasance of Certain Covenants
The indenture provides
that, unless otherwise provided by the terms of the applicable series of debt securities, upon compliance with certain conditions:
| ● | we may omit to comply with the covenant described under the heading “Consolidation, Merger
and Sale of Assets” and certain other covenants set forth in the indenture, as well as any additional covenants which may
be set forth in the applicable prospectus supplement; and |
| ● | any omission to comply with those covenants will not constitute a Default or an Event of Default
with respect to the debt securities of that series. |
We refer to this as covenant defeasance.
The conditions include:
| ● | depositing with the trustee money and/or U.S. government obligations or, in the case of debt securities
denominated in a single currency other than U.S. dollars, government obligations of the government that issued or caused to be
issued such currency, that, through the payment of interest and principal in accordance with their terms, will provide money in
an amount sufficient in the opinion of a nationally recognized firm of independent public accountants or investment bank to pay
and discharge each installment of principal of, premium and interest on and any mandatory sinking fund payments in respect of the
debt securities of that series on the stated maturity of those payments in accordance with the terms of the indenture and those
debt securities; |
| ● | such deposit will not result in a breach or violation of, or constitute a default under the indenture
or any other agreement to which we are a party; |
| ● | no Default or Event of Default with respect to the applicable series of debt securities shall have
occurred or is continuing on the date of such deposit; and |
| ● | delivering to the trustee an opinion of counsel to the effect that we have received from, or there
has been published by, the United States Internal Revenue Service a ruling or, since the date of execution of the indenture, there
has been a change in the applicable United States federal income tax law, in either case to the effect that, and based thereon
such opinion shall confirm that, the holders of the debt securities of that series will not recognize income, gain or loss for
United States federal income tax purposes as a result of the deposit and related covenant defeasance and will be subject to United
States federal income tax on the same amounts and in the same manner and at the same times as would have been the case if the deposit
and related covenant defeasance had not occurred. |
No Personal Liability of Directors, Officers, Employees or
Stockholders
None of our past, present
or future directors, officers, employees or stockholders, as such, will have any liability for any of our obligations under the
debt securities or the indenture or for any claim based on, or in respect or by reason of, such obligations or their creation.
By accepting a debt security, each holder waives and releases all such liability. This waiver and release is part of the consideration
for the issue of the debt securities. However, this waiver and release may not be effective to waive liabilities under U.S. federal
securities laws, and it is the view of the SEC that such a waiver is against public policy.
Governing Law
The indenture and the
debt securities, including any claim or controversy arising out of or relating to the indenture or the securities, will be governed
by the laws of the State of New York.
The indenture will
provide that we, the trustee and the holders of the debt securities (by their acceptance of the debt securities) irrevocably waive,
to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or
relating to the indenture, the debt securities or the transactions contemplated thereby.
The indenture will
provide that any legal suit, action or proceeding arising out of or based upon the indenture or the transactions contemplated thereby
may be instituted in the federal courts of the United States of America located in the City of New York or the courts of the State
of New York, in each case located in the City of New York, and we, the trustee and the holder of the debt securities (by their
acceptance of the debt securities) irrevocably submit to the non-exclusive jurisdiction of such courts in any such suit, action
or proceeding. The indenture will provide that service of any process, summons, notice or document by mail (to the extent allowed
under any applicable statute or rule of court) to such party’s address set forth in the indenture will be effective
service of process for any suit, action or other proceeding brought in any such court. The indenture will provide that we, the
trustee and the holders of the debt securities (by their acceptance of the debt securities) irrevocably and unconditionally waive
any objection to the laying of venue of any suit, action or other proceeding in the courts specified above and irrevocably and
unconditionally waive and agree not to plead or claim any such suit, action or other proceeding has been brought in an inconvenient
forum.
DESCRIPTION
OF DEPOSITARY SHARES
General
We may, at our option,
elect to offer fractional shares of preferred stock, or depositary shares, rather than full shares of preferred stock. If we do,
we will issue to the public receipts, called depositary receipts, for depositary shares, each of which will represent a fraction
of a share of a particular series of preferred stock, to be described in the applicable prospectus supplement. Unless otherwise
provided in the prospectus supplement, each owner of a depositary share will be entitled to all the rights and preferences of the
preferred stock represented by the depositary share, in proportion to the applicable fractional interest in a share of preferred
stock represented by the depositary share. Those rights include dividend, voting, redemption, conversion and liquidation rights.
The shares of preferred
stock underlying the depositary shares will be deposited with a bank or trust company selected by us to act as depositary under
a deposit agreement between us, the depositary and the holders of the depositary receipts. The depositary will be the transfer
agent, registrar and dividend disbursing agent for the depositary shares.
The depositary shares
will be evidenced by depositary receipts issued pursuant to the depositary agreement. Holders of depositary receipts agree to be
bound by the deposit agreement, which will require holders to take certain actions such as filing proof of residence and paying
certain charges.
The summary of terms
of the depositary shares contained in this prospectus is not complete. You should refer to the form of the deposit agreement, our
Certificate of Incorporation and the certificate of designation for the applicable series of preferred stock that are, or will
be, filed with the SEC.
Dividends and Other Distributions
The depositary will
distribute all cash dividends or other cash distributions, if any, received in respect of the preferred stock underlying the depositary
shares to the record holders of depositary shares in proportion to the number of depositary shares owned by those holders on the
relevant record date. The relevant record date for depositary shares will be the same date as the record date for the underlying
preferred stock.
If there is a distribution
other than in cash, the depositary will distribute property (including securities) received by it to the record holders of depositary
shares, unless the depositary determines that it is not feasible to make the distribution. If this occurs, with our approval, the
depositary may adopt another method for the distribution, including selling the property and distributing the net proceeds from
the sale to the holders.
Liquidation Preference
If a series of preferred
stock underlying the depositary shares has a liquidation preference, in the event of the voluntary or involuntary liquidation,
dissolution or winding up of the Company, holders of depositary shares will be entitled to receive the fraction of the liquidation
preference accorded each share of the applicable series of preferred stock, as set forth in the applicable prospectus supplement.
Withdrawal of Stock
Unless the related
depositary shares have been previously called for redemption, upon surrender of the depositary receipts at the office of the depositary,
the holder of the depositary shares will be entitled to delivery, at the office of the depositary to or upon his or her order,
of the number of whole shares of the preferred stock and any money or other property represented by the depositary shares. If the
depositary receipts delivered by the holder evidence a number of depositary shares in excess of the number of depositary shares
representing the number of whole shares of preferred stock to be withdrawn, the depositary will deliver to the holder, at the same
time, a new depositary receipt evidencing the excess number of depositary shares. In no event will the depositary deliver fractional
shares of preferred stock upon surrender of depositary receipts. Holders of preferred stock so withdrawn may not thereafter deposit
those shares under the deposit agreement or receive depositary receipts evidencing depositary shares therefor.
Redemption of Depositary Shares
Whenever we redeem
shares of preferred stock held by the depositary, the depositary will redeem as of the same redemption date the number of depositary
shares representing shares of the preferred stock so redeemed, so long as we have paid in full to the depositary the redemption
price of the preferred stock to be redeemed plus an amount equal to any accumulated and unpaid dividends on the preferred stock
to the date fixed for redemption. The redemption price per depositary share will be equal to the redemption price and any other
amounts per share payable on the preferred stock multiplied by the fraction of a share of preferred stock represented by one depositary
share. If less than all the depositary shares are to be redeemed, the depositary shares to be redeemed will be selected by lot
or pro rata or by any other equitable method as may be determined by the depositary.
After the date fixed
for redemption, depositary shares called for redemption will no longer be deemed to be outstanding and all rights of the holders
of depositary shares will cease, except the right to receive the monies payable upon redemption and any money or other property
to which the holders of the depositary shares were entitled upon redemption upon surrender to the depositary of the depositary
receipts evidencing the depositary shares.
Voting the Preferred Stock
Upon receipt of notice
of any meeting at which the holders of the preferred stock are entitled to vote, the depositary will mail the information contained
in the notice of meeting to the record holders of the depositary receipts relating to that preferred stock. The record date for
the depositary receipts relating to the preferred stock will be the same date as the record date for the preferred stock. Each
record holder of the depositary shares on the record date will be entitled to instruct the depositary as to the exercise of the
voting rights pertaining to the number of shares of preferred stock represented by that holder’s depositary shares. The depositary
will endeavor, insofar as practicable, to vote the number of shares of preferred stock represented by the depositary shares in
accordance with those instructions, and we will agree to take all action that may be deemed necessary by the depositary in order
to enable the depositary to do so. The depositary will not vote any shares of preferred stock except to the extent that it receives
specific instructions from the holders of depositary shares representing that number of shares of preferred stock.
Charges of the Depositary
We will pay all transfer
and other taxes and governmental charges arising solely from the existence of the depositary arrangements. We will pay charges
of the depositary in connection with the initial deposit of the preferred stock and any redemption of the preferred stock. Holders
of depositary receipts will pay transfer, income and other taxes and governmental charges and such other charges (including those
in connection with the receipt and distribution of dividends, the sale or exercise of rights, the withdrawal of the preferred stock
and the transferring, splitting or grouping of depositary receipts) as are expressly provided in the deposit agreement to be for
their accounts. If these charges have not been paid by the holders of depositary receipts, the depositary may refuse to transfer
depositary shares, withhold dividends and distributions and sell the depositary shares evidenced by the depositary receipt.
Amendment and Termination of the Deposit Agreement
The form of depositary
receipt evidencing the depositary shares and any provision of the deposit agreement may be amended by agreement between us and
the depositary. However, any amendment that materially and adversely alters the rights of the holders of depositary shares, other
than fee changes, will not be effective unless the amendment has been approved by the holders of a majority of the outstanding
depositary shares. The deposit agreement may be terminated by the depositary or us only if:
| ● | all outstanding depositary shares have been redeemed; or |
| ● | there has been a final distribution of the preferred stock in connection with our dissolution and
such distribution has been made to all the holders of depositary shares. |
Resignation and Removal of Depositary
The depositary may
resign at any time by delivering to us notice of its election to do so, and we may remove the depositary at any time. Any resignation
or removal of the depositary will take effect upon our appointment of a successor depositary and its acceptance of such appointment.
The successor depositary must be appointed within 60 days after delivery of the notice of resignation or removal and must be a
bank or trust company having its principal office in the United States and having the requisite combined capital and surplus as
set forth in the applicable agreement.
Notices
The depositary will
forward to holders of depositary receipts all notices, reports and other communications, including proxy solicitation materials
received from us, that are delivered to the depositary and that we are required to furnish to the holders of the preferred stock.
In addition, the depositary will make available for inspection by holders of depositary receipts at the principal office of the
depositary, and at such other places as it may from time to time deem advisable, any reports and communications we deliver to the
depositary as the holder of preferred stock.
Limitation of Liability
Neither we nor the
depositary will be liable if either is prevented or delayed by law or any circumstance beyond its control in performing its obligations.
Our obligations and those of the depositary will be limited to performance in good faith of our and its duties thereunder. We and
the depositary will not be obligated to prosecute or defend any legal proceeding in respect of any depositary shares or preferred
stock unless satisfactory indemnity is furnished. We and the depositary may rely upon written advice of counsel or accountants,
on information provided by persons presenting preferred stock for deposit, holders of depositary receipts or other persons believed
to be competent to give such information and on documents believed to be genuine and to have been signed or presented by the proper
party or parties.
DESCRIPTION
OF WARRANTS
We may issue warrants
to purchase debt securities, preferred stock, depositary shares or common stock. We may offer warrants separately or together with
one or more additional warrants, debt securities, preferred stock, depositary shares or common stock, or any combination of those
securities in the form of units, as described in the applicable prospectus supplement. If we issue warrants as part of a unit,
the applicable prospectus supplement will specify whether those warrants may be separated from the other securities in the unit
prior to the expiration date of the warrants. The applicable prospectus supplement will describe the following terms of any warrants:
| ● | the specific designation and aggregate number of, and the offering price at which we will issue,
the warrants; |
| ● | the currency or currency units in which the offering price, if any, and the exercise price are
payable; |
| ● | the date on which the right to exercise the warrants will begin and the date on which that right
will expire or, if you may not continuously exercise the warrants throughout that period, the specific date or dates on which you
may exercise the warrants; |
| ● | whether the warrants are to be sold separately or with other securities as parts of units; |
| ● | whether the warrants will be issued in definitive or global form or in any combination of these
forms, although, in any case, the form of a warrant included in a unit will correspond to the form of the unit and of any security
included in that unit; |
| ● | any applicable material U.S. federal income tax consequences; |
| ● | the identity of the warrant agent for the warrants and of any other depositaries, execution or
paying agents, transfer agents, registrars or other agents; |
| ● | the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the
warrants on any securities exchange; |
| ● | the designation and terms of any equity securities purchasable upon exercise of the warrants; |
| ● | the designation, aggregate principal amount, currency and terms of any debt securities that may
be purchased upon exercise of the warrants; |
| ● | if applicable, the designation and terms of the debt securities, preferred stock, depositary shares
or common stock with which the warrants are issued and the number of warrants issued with each security; |
| ● | if applicable, the date from and after which any warrants issued as part of a unit and the related
debt securities, preferred stock, depositary shares or common stock will be separately transferable; |
| ● | the number of shares of preferred stock, the number of depositary shares or the number of shares
of common stock purchasable upon exercise of a warrant and the price at which those shares may be purchased; |
| ● | if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
| ● | information with respect to book-entry procedures, if any; |
| ● | the antidilution provisions, and other provisions for changes to or adjustment in the exercise
price, of the warrants, if any; |
| ● | any redemption or call provisions; and |
| ● | any additional terms of the warrants, including terms, procedures and limitations relating to the
exchange or exercise of the warrants. |
DESCRIPTION
OF SUBSCRIPTION RIGHTS
We may issue subscription
rights to purchase our common stock, preferred stock, warrants or debt securities, or units consisting of some or all of these
securities. These subscription rights may be offered independently or together with any other security offered hereby and may or
may not be transferable by the stockholder receiving the subscription rights in such offering. In connection with any offering
of subscription rights, we may enter into a standby arrangement with one or more underwriters or other purchasers pursuant to which
the underwriters or other purchasers may be required to purchase any securities remaining unsubscribed for after such offering.
The prospectus supplement
relating to any subscription rights we offer, if any, will, to the extent applicable, include specific terms relating to the offering,
including some or all of the following:
| ● | the price, if any, for the subscription rights; |
| ● | the exercise price payable for our common stock, preferred stock, warrants or debt securities,
or units consisting of some or all of these securities, upon the exercise of the subscription rights; |
| ● | the number of subscription rights to be issued to each stockholder; |
| ● | the number and terms of our common stock, preferred stock, warrants or debt securities, or units
consisting of some or all of these securities, which may be purchased per each subscription right; |
| ● | the extent to which the subscription rights are transferable; |
| ● | any other terms of the subscription rights, including the terms, procedures and limitations relating
to the exchange and exercise of the subscription rights; |
| ● | the date on which the right to exercise the subscription rights shall commence, and the date on
which the subscription rights shall expire; |
| ● | the extent to which the subscription rights may include an over-subscription privilege with respect
to unsubscribed securities or an over-allotment privilege to the extent the securities are fully subscribed; and |
| ● | if applicable, the material terms of any standby underwriting or purchase arrangement which may
be entered into by us in connection with the offering of subscription rights. |
The descriptions of
the subscription rights in this prospectus and in any prospectus supplement are summaries of the material provisions of the applicable
subscription right agreements. These descriptions do not restate those subscription right agreements in their entirety and may
not contain all the information that you may find useful. We urge you to read the applicable subscription right agreements because
the agreements, and not the summaries, define your rights as holders of the subscription rights. For more information, please review
the forms of the relevant subscription right agreements, which will be filed with the SEC promptly after the offering of subscription
rights and will be available as described in the section of this prospectus captioned “Where You Can Find More Information.”
DESCRIPTION
OF PURCHASE CONTRACTS
The following description
summarizes the general features of the purchase contracts that we may offer under this prospectus. Although the features we have
summarized below will generally apply to any future purchase contracts we may offer under this prospectus, we will describe the
particular terms of any purchase contracts that we may offer in more detail in the applicable prospectus supplement. The specific
terms of any purchase contracts may differ from the description provided below as a result of negotiations with third parties in
connection with the issuance of those purchase contracts, as well as for other reasons. Because the terms of any purchase contracts
we offer under a prospectus supplement may differ from the terms we describe below, you should rely solely on information in the
applicable prospectus supplement if that summary is different from the summary in this prospectus.
We will incorporate
by reference into the registration statement, of which this prospectus is a part, the form of any purchase contract that we may
offer under this prospectus before the sale of the related purchase contract. We urge you to read any applicable prospectus supplement
related to specific purchase contracts being offered, as well as the complete instruments that contain the terms of the securities
that are subject to those purchase contracts. Certain of those instruments, or forms of those instruments, have been filed as exhibits
to the registration statement of which this prospectus is a part, and supplements to those instruments or forms may be incorporated
by reference into the registration statement, of which this prospectus is a part, from reports we file with the SEC.
We may issue purchase
contracts, including contracts obligating holders to purchase from us, and for us to sell to holders, a specific or variable number
of our securities at a future date or dates. Alternatively, the purchase contracts may obligate us to purchase from holders, and
obligate holders to sell to us, a specific or varying number of our securities.
If we offer any purchase
contracts, certain terms of that series of purchase contracts will be described in the applicable prospectus supplement, including,
without limitation, the following:
| ● | the price of the securities or other property subject to the purchase contracts (which may be determined
by reference to a specific formula described in the purchase contracts); |
| ● | whether the purchase contracts are issued separately, or as a part of units each consisting of
a purchase contract and one or more of our other securities, securing the holder’s obligations under the purchase contract; |
| ● | any requirement for us to make periodic payments to holders or vice versa, and whether the payments
are unsecured or pre-funded; |
| ● | any provisions relating to any security provided for the purchase contracts; |
| ● | whether the purchase contracts obligate the holder or us to purchase or sell, or both purchase
and sell, the securities subject to purchase under the purchase contract, and the nature and amount of each of those securities,
or the method of determining those amounts; |
| ● | whether the purchase contracts are to be prepaid or not; |
| ● | whether the purchase contracts are to be settled by delivery, or by reference or linkage to the
value, performance or level of the securities subject to purchase under the purchase contract; |
| ● | any acceleration, cancellation, termination or other provisions relating to the settlement of the
purchase contracts; |
| ● | a discussion of certain U.S. federal income tax considerations applicable to the purchase contracts; |
| ● | whether the purchase contracts will be issued in fully registered or global form; and |
| ● | any other terms of the purchase contracts and any securities subject to such purchase contracts. |
DESCRIPTION
OF UNITS
We
may issue units comprised of one or more of the other securities that may be offered under this prospectus, in any combination.
The following, together with the additional information we may include in any applicable prospectus supplement, summarizes the
material terms and provisions of the units that we may offer under this prospectus. While the terms summarized below will apply
generally to any units we may offer, we will describe the particular terms of any series of units in more detail in the applicable
prospectus supplement. If we indicate in the prospectus supplement, the terms of any units offered under that prospectus supplement
may differ from the terms described below. Specific unit agreements will contain additional important terms and provisions and
will be incorporated by reference as an exhibit to the registration statement that includes this prospectus.
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 being offered, including:
| ● | the material 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 material provisions relating to the issuance, payment, settlement, transfer or exchange of
the units or of the securities comprising the units; and |
| ● | any material provisions of the governing unit agreement that differ from those described above. |
We
may issue units in such amounts and in such numbers of distinct series as we determine.
The
provisions described in this section, as well as those described under “Description of Debt Securities,” “Description
of Capital Stock” and “Description of Warrants” will apply to each unit, as applicable, and to any
debt securities, common stock, preferred stock or warrant included in each unit, as applicable.
Unit Agent
The
name and address of the unit agent for any units we offer will be set forth in the applicable prospectus supplement.
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.
DIVIDEND POLICY
The payment of dividends
on our common stock will be at the discretion of our board of directors and will depend on our results of operations, capital requirements,
financial condition, prospects, contractual arrangements, any limitations on payment of dividends present in our future debt agreements,
and other factors that our board of directors may deem relevant.
SELLING SECURITYHOLDERS
Information about
the selling stockholder is set forth in the table below in this section. Up to 2,976,190 shares of Common Stock may be sold pursuant
to this prospectus by the selling stockholder. In connection with and as consideration for an investment of $5,000,000 in the Company
in a private placement, the selling stockholder received shares of Common Stock pursuant to that certain Securities Purchase Agreement
dated as of October 13, 2023. The selling stockholder, Manmeet S. Soni, is our Chief Operating Officer and a member of our Board
of Directors. Mr. Soni and his permitted transferees, pledgees or other successors may from time to time offer the shares of our
common stock offered by this prospectus. The table below sets forth information with respect to the beneficial ownership of our
common stock owned by Mr. Soni.
The beneficial
ownership of the common stock set forth in the following table is determined in accordance with the SEC rules, and the information
is not necessarily indicative of beneficial ownership for any other purpose. In general, under these rules a beneficial owner of
a security includes any person who, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise
has or shares voting power or investment power with respect to such security. A person is also deemed to be a beneficial owner
of a security if that person has the right to acquire beneficial ownership of such security within 60 days. To our knowledge, except
as otherwise indicated, and subject to applicable community property laws, the person named in the table has sole voting and investment
power with respect to all shares of common stock beneficially owned by that person.
The number of
shares of common stock outstanding and percentage of beneficial ownership before this offering set forth below is computed on the
basis of 701,703,363 shares of our common stock issued and outstanding as of February 13, 2024.
The number of shares of common stock and percentage of beneficial ownership after the consummation of this offering set forth below
are based on the number of shares to be issued and outstanding immediately after the consummation of this offering. Shares of our
common stock that a person has the right to acquire within 60 days of February 13, 2024 (including the right to exchange described
above) are deemed outstanding for purposes of computing the percentage ownership of such person’s holdings, but are not deemed
outstanding for purposes of computing the percentage ownership of any other person. The selling securityholder listed in the table
below may have sold, transferred, otherwise disposed of or purchased, or may sell, transfer, otherwise dispose of or purchase,
at any time and from time to time, shares of our common stock in transactions exempt from the registration requirements of the
Securities Act, or in the open market after the date on which they provided the information set forth in the table below. Therefore,
it is difficult to estimate with any degree of certainty the aggregate number of shares that the selling securityholder will ultimately
offer pursuant to this prospectus or that the selling securityholder will ultimately own upon completion of the offering to which
this prospectus relates.
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Common Stock Beneficially Owned |
|
Name of Beneficial Owner |
|
Prior to this
Offering |
|
|
Maximum
number of shares
that may be
offered pursuant
to this prospectus |
|
|
After this
Offering |
|
|
|
Number |
|
|
% |
|
|
|
|
|
Number |
|
|
% |
|
Manmeet S. Soni(1) |
|
|
3,370,909 |
|
|
|
* |
|
|
|
2,976,190 |
|
|
|
394,719 |
|
|
|
* |
|
* |
Less than one percent.
(1) Based on a Form 4 filed with the SEC on October 16, 2023
by Manmeet Soni, an 8-K filed on October 16, 2023 by the Company and information known to the Company.
|
PLAN OF DISTRIBUTION
We or the selling stockholder
may sell the securities in one or more of the following ways (or in any combination) from time to time:
| ● | pursuant to underwritten public offerings, negotiated transactions, block trades, “at the
market” offerings into an existing trading market, subscription rights offerings, or a combination of these methods; |
| ● | through underwriters or dealers; |
| ● | ordinary brokerage transactions and transactions in which a broker-dealer solicits purchases; |
| ● | through a combination of any of these methods of sale. |
In addition, we may
issue the securities as a dividend or distribution or in a subscription rights offering to our existing securityholders. This prospectus
may be used in connection with any offering of our securities through any of these methods or other methods described in the applicable
prospectus supplement.
We may directly solicit
offers to purchase securities, or agents may be designated to solicit such offers. We will, in the prospectus supplement relating
to such offering, name any agent that could be viewed as an underwriter under the Securities Act, and describe any commissions
that we must pay. Any such agent will be acting on a best efforts basis for the period of its appointment or, if indicated in the
applicable prospectus supplement, on a firm commitment basis.
The distribution of
the securities may be effected from time to time in one or more transactions:
| ● | at a fixed price, or prices, which may be changed from time to time; |
| ● | at market prices prevailing at the time of sale; |
| ● | at prices related to such prevailing market prices; or |
If we and/or the
selling stockholder, if applicable, use underwriters in the sale, the securities will be acquired by the underwriters for their
own account and may be resold from time to time in one or more transactions, including:
| ● | negotiated transactions; |
| ● | at a fixed public offering price or prices, which may be changed; |
| ● | at market prices prevailing at the time of sale; |
| ● | at prices related to prevailing market prices; or |
Each prospectus supplement
will describe the method of distribution of the securities and any applicable restrictions.
The prospectus supplement
with respect to the securities of a particular series will describe the terms of the offering of the securities, including the
following:
| ● | the name of the agent or any underwriters; |
| ● | the public offering or purchase price and the proceeds we will receive from the sale of the securities; |
| ● | any discounts and commissions to be allowed or re-allowed or paid to the agent or underwriters; |
| ● | all other items constituting underwriting compensation; |
| ● | any discounts and commissions to be allowed or re-allowed or paid to dealers; and |
| ● | any exchanges on which the securities will be listed. |
We and/or the
selling stockholder, if applicable, may sell the securities through agents from time to time.
We may sell the
securities to other stockholders of the Company through a rights offering. This prospectus may be used in connection with any offering
of our securities through any of these methods or other methods described in the applicable prospectus supplement.
The selling stockholder
may, from time to time, pledge or grant a security interest in some or all of the shares beneficially owned and, if they default
in the performance of their secured obligations, the pledgees or secured parties may offer and sell such shares, from time to time,
under this prospectus, or under an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities
Act amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders
under this prospectus. The selling stockholder also may transfer the shares of Common Stock in other circumstances, in which case
the transferees, pledgees or other successors in interest will be the selling stockholder for purposes of this prospectus.
If any underwriters
or agents are utilized in the sale of the securities in respect of which this prospectus is delivered, we will enter into an underwriting
agreement or other agreement with them at the time of sale to them, and we will set forth in the prospectus supplement relating
to such offering the names of the underwriters or agents and the terms of the related agreement with them.
If a dealer is utilized
in the sale of the securities in respect of which this prospectus is delivered, we will sell such securities to the dealer, as
principal. The dealer may then resell such securities to the public at varying prices to be determined by such dealer at the time
of resale.
If we offer securities
in a subscription rights offering to our existing securityholders, we may enter into a standby underwriting agreement with dealers,
acting as standby underwriters. We may pay the standby underwriters a commitment fee for the securities they commit to purchase
on a standby basis. If we do not enter into a standby underwriting arrangement, we may retain a dealer-manager to manage a subscription
rights offering for us.
Remarketing firms,
agents, underwriters, dealers and other persons may be entitled under agreements which they may enter into with us to indemnification
by us against certain civil liabilities, including liabilities under the Securities Act, and may be customers of, engage in transactions
with or perform services for us in the ordinary course of business.
If so indicated in
the applicable prospectus supplement, we will authorize underwriters or other persons acting as our agents to solicit offers by
certain institutions to purchase securities from us pursuant to delayed delivery contracts providing for payment and delivery on
the date stated in the prospectus supplement. Each contract will be for an amount not less than, and the aggregate amount of securities
sold pursuant to such contracts shall not be less nor more than, the respective amounts stated in the prospectus supplement. Institutions
with whom the contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions and other institutions, but shall in all cases be subject to our
approval. Delayed delivery contracts will not be subject to any conditions except that:
| ● | the purchase by an institution of the securities covered under that contract shall not at the time
of delivery be prohibited under the laws of the jurisdiction to which that institution is subject; and |
| ● | if the securities are also being sold to underwriters acting as principals for their own account,
the underwriters shall have purchased such securities not sold for delayed delivery. The underwriters and other persons acting
as our agents will not have any responsibility in respect of the validity or performance of delayed delivery contracts. |
Certain agents, underwriters
and dealers, and their associates and affiliates may be customers of, have borrowing relationships with, engage in other transactions
with, and/or perform services, including investment banking services, for us or one or more of our respective affiliates in the
ordinary course of business.
In order to facilitate
the offering of the securities, any underwriters may engage in transactions that stabilize, maintain or otherwise affect the price
of the securities or any other securities the prices of which may be used to determine payments on such securities. Specifically,
any underwriters may overallot in connection with the offering, creating a short position for their own accounts. In addition,
to cover overallotments or to stabilize the price of the securities or of any such other securities, the underwriters may bid for,
and purchase, the securities or any such other securities in the open market. Finally, in any offering of the securities through
a syndicate of underwriters, the underwriting syndicate may reclaim selling concessions allowed to an underwriter or a dealer for
distributing the securities in the offering if the syndicate repurchases previously distributed securities in transactions to cover
syndicate short positions, in stabilization transactions or otherwise. Any of these activities may stabilize or maintain the market
price of the securities above independent market levels. Any such underwriters are not required to engage in these activities and
may end any of these activities at any time.
Under Rule 15c6-1 of
the Exchange Act, trades in the secondary market generally are required to settle in two business days, unless the parties to any
such trade expressly agree otherwise or the securities are sold by us to an underwriter in a firm commitment underwritten offering.
The applicable prospectus supplement may provide that the original issue date for your securities may be more than two scheduled
business days after the trade date for your securities. Accordingly, in such a case, if you wish to trade securities on any date
prior to the second business day before the original issue date for your securities, you will be required, by virtue of the fact
that your securities initially are expected to settle in more than two scheduled business days after the trade date for your securities,
to make alternative settlement arrangements to prevent a failed settlement.
The securities may
be new issues of securities and may have no established trading market. The securities may or may not be listed on a national securities
exchange. We can make no assurance as to the liquidity of or the existence of trading markets for any of the securities.
In compliance with
the guidelines of the Financial Industry Regulatory Authority, or FINRA, the aggregate maximum discount, commission or agency fees
or other items constituting underwriting compensation to be received by any FINRA member or independent broker-dealer will not
exceed 8% of the proceeds from any offering pursuant to this prospectus and any applicable prospectus supplement.
LEGAL MATTERS
Unless the applicable
prospectus supplement indicates otherwise, the validity of the securities being offered by this prospectus will be passed upon
by Baker & Hostetler, LLP. 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
The financial statements
incorporated in this prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2023 have been so
incorporated in reliance on the report (which contains an explanatory paragraph relating to the Company’s ability to continue
as a going concern as described in Note 3 to the consolidated financial statements) of PricewaterhouseCoopers LLP, an independent
registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to “incorporate by reference” information into this prospectus. This means that we can disclose important
information about us and our financial condition to you by referring you to other documents filed separately with the SEC. The
information incorporated by reference is considered to be a part of this prospectus, except any information that is superseded
by information that is included in a document subsequently filed with the SEC.
This
prospectus incorporates by reference the documents listed below that we have previously filed with the SEC and any future filings
we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), from the date of this prospectus until the termination of an offering of securities, except that we are not incorporating
by reference any information furnished (and not filed) with the SEC, including any information furnished pursuant to Items 2.02
or 7.01 of Form 8-K or related exhibits furnished pursuant to Item 9.01 of Form 8-K:
| ● | Our Annual Report on Form 10-K for the fiscal year ended December 31, 2023, as filed on February 20, 2024; |
| ● | The description of the securities contained in our Current Report on Form 8-K dated September
18, 2020, including any amendment or report filed for the purpose of updating such description. |
Any
statement contained in a document all or a portion of which is incorporated or deemed to be incorporated by reference herein will
be deemed to be modified or superseded to the extent that a statement contained herein or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so
modified will not be deemed to constitute a part hereof, except as so modified, and any statement so superseded will not be deemed
to constitute a part hereof.
A
copy of any document incorporated by reference in this prospectus may be obtained at no cost by writing or telephoning us at the
following address and telephone number:
Summit Therapeutics Inc.
601 Brickell Key Drive, Suite 1000
Miami, FL 33131
Attention: Investor Relations
(650) 460-8308
We
maintain a website at www.smmttx.com. Information about us, including our reports filed with the SEC, is available through that
site. Such reports are accessible at no charge through our website and are made available as soon as reasonably practicable after
such material is filed with or furnished to the SEC. Our website and the information contained on that website, or connected to
that website, are not incorporated by reference in this prospectus.
You may read and copy
any materials we file with the SEC at the SEC’s website mentioned under the heading “Where You Can Find More Information.”
The information on the SEC’s website is not incorporated by reference in this prospectus.
WHERE YOU
CAN FIND MORE INFORMATION
We file annual, quarterly
and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's website at www.sec.gov. Copies of certain information filed by us with the SEC are also available on our
website at www.smmttx.com. The information contained in, or accessible through, our website, however, should not be considered
a part of this prospectus.
This prospectus is
part of a registration statement we filed with the SEC. This prospectus does not contain all of the information included in the
registration statement and the amendments, exhibits and schedules thereto, in accordance with SEC rules and regulations. You should
review the information and exhibits in the registration statement for further information on us and our consolidated subsidiaries
and the securities we are offering. Statements in this prospectus concerning any document we filed as an exhibit to the registration
statement or that we otherwise filed with the SEC are not intended to be comprehensive and are qualified by reference to these
filings. You should review the complete document to evaluate these statements. You can obtain a copy of the registration statement
from the SEC at the address listed above or from the SEC’s website.
Summit Therapeutics Inc.
$450,000,000
Common stock
Preferred Stock
Debt Securities
Depositary Shares
Warrants
Subscription Rights
Purchase Contracts
Units
and
Up to 2,976,190 Shares of Common Stock
by the Selling Stockholder
PROSPECTUS
[●], 2024
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following is an estimate of the expenses
(all of which are to be paid by us) that we may incur in connection with the securities being registered hereby.
|
|
Amount |
SEC registration fee |
|
$ |
68,368.23 |
Legal fees and expenses |
|
|
* |
Accounting fees and expenses |
|
|
* |
Miscellaneous |
|
|
* |
Total |
|
$ |
* |
* |
These fees are calculated based on the securities offered and the number
of issuances and accordingly cannot be defined at this time. |
Item 15. Indemnification of Directors and
Officers.
Section 145(a) of the
DGCL provides, in general, that a corporation may indemnify any person who was or is a party to or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation), because he or she 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,
partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding, if
he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Section 145(b) of the
DGCL provides, in general, 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 by or in the right of the corporation to procure a judgment in its favor
because the 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, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense
or settlement of such action or suit if he or she acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of the corporation, except that no indemnification shall be made with respect to any claim, issue
or matter as to which he or she shall have been adjudged to be liable to the corporation unless and only to the extent that the
Court of Chancery or other adjudicating court determines that, despite the adjudication of liability but in view of all of the
circumstances of the case, he or she is fairly and reasonably entitled to indemnity for such expenses that the Court of Chancery
or other adjudicating court shall deem proper.
Section 145(g) of the
DGCL provides, in general, that a corporation may purchase and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against
such person and incurred by such person in any such capacity, or arising out of his or her status as such, whether or not the corporation
would have the power to indemnify the person against such liability under Section 145 of the DGCL.
The registrant’s
Certificate of Incorporation provides that the registrant will indemnify each person who was or is a party or threatened to be
made a party to or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the registrant) by reason of the fact that he or she is or was a director
or officer of the registrant, or is or was serving at the registrant’s request as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise to the fullest extent permitted by the DGCL. The registrant’s Certificate
of Incorporation provides that any reasonable, documented, out-pocket expenses must be advanced to these indemnitees under certain
circumstances.
The indemnification
provisions contained in the registrant’s Certificate of Incorporation are not exclusive. In addition, the registrant has
entered into indemnification agreements with each of its directors and executive officers. Each indemnification agreement provides
that the registrant will indemnify the director or executive officer to the fullest extent permitted by law for claims arising
in his or her capacity as a director or executive officer, provided that he or she acted in good faith and in a manner that he
or she reasonably believed to be in, or not opposed to, the registrant’s best interests and, with respect to any criminal
proceeding, had no reasonable cause to believe that his or her conduct was unlawful. In the event that the registrant does not
assume the defense of a claim against a director or executive officer, the registrant is required to advance his or her expenses
in connection with his defense, provided that he or she undertakes to repay all amounts advanced if it is ultimately determined
that he or she is not entitled to be indemnified by the registrant.
In addition, the registrant
maintains standard policies of insurance under which coverage is provided to the registrant’s directors and officers against
losses arising from claims made by reason of breach of duty or other wrongful act, and to the registrant with respect to payments
which may be made by the registrant to such directors and officers pursuant to the above indemnification provisions or otherwise
as a matter of law.
Item 16. Exhibits.
*** |
|
To be filed in accordance with the requirements
of Section 305(b)(2) of the Trust Indenture Act of 1939 and Rule 5b-3 thereunder.
|
|
|
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(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 Securities and Exchange Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum
aggregate offering price set forth in the “Calculation of Filing Fee Tables” or “Calculation of Registration
Fee” table, as applicable, in the effective registration statement; and
(iii) to
include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided, however, that: Paragraphs
(a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the SEC 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 to any purchaser:
(i) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information
required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of
the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with
a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That,
for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution
of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant
pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if
the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant
will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to
by the undersigned registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6) That,
for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee
benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933
and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed
in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, 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 Miami, State of Florida, on February 20, 2024.
|
SUMMIT THERAPEUTICS INC. |
|
|
|
|
By: |
/s/ Robert W. Duggan |
|
|
Name: Robert W. Duggan |
|
|
Title: Chief Executive Officer and Executive Chairman; Principal Executive Officer |
|
By: |
/s/ Dr. Mahkam Zanganeh |
|
|
Name: Dr. Mahkam Zanganeh |
|
|
Title: Chief Executive Officer; President and member of the Board; Principal Executive Officer |
POWER OF ATTORNEY
AND SIGNATURES
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert W. Duggan
and Ankur Dhingra, and each of them singly, as the undersigned’s true and lawful attorneys-in-fact and agents,
with full power of substitution, for the undersigned in any and all capacities, to sign any or all amendments to this Registration
Statement (including post-effective amendments), and to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for
all intents and purposes as the undersigned might or could do in person, hereby and about the premises hereby ratifying and confirming
all that said attorneys-in-fact and agent, proxy and agent, or their substitute, may lawfully do or cause to be done
by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, the following persons in the capacities and on the dates indicated
have signed this Registration Statement below.
Name |
|
Title |
|
Date |
/s/ Robert W. Duggan
Robert W. Duggan |
|
Chief Executive Officer and Executive Chairman (Principal Executive Officer) |
|
February 18, 2024 |
|
|
|
|
|
/s/ Dr. Mahkam Zanganeh
Dr. Mahkam Zanganeh |
|
Chief Executive Officer, President and Director (Principal Executive Officer) |
|
February 18, 2024 |
|
|
|
|
|
/s/ Manmeet S. Soni
Manmeet S. Soni |
|
Chief Operating Officer and Director |
|
February 18, 2024 |
|
|
|
|
|
/s/ Ankur Dhingra
Ankur Dhingra |
|
Chief Financial Officer (Principal Financial Officer) |
|
February 18, 2024 |
|
|
|
|
|
/s/ Dr. Robert Booth
Dr. Robert Booth |
|
Director |
|
February 16, 2024 |
|
|
|
|
|
/s/ Dr. Alessandra Cesano
Dr. Alessandra Cesano |
|
Director |
|
February 16, 2024 |
|
|
|
|
|
/s/ Kenneth Clark
Kenneth Clark |
|
Director |
|
February 18, 2024 |
|
|
|
|
|
/s/ Ujwala Mahatme
Ujwala Mahatme |
|
Director |
|
February 18, 2024 |
|
|
|
|
|
/s/ Dr. Yu Xia
Dr. Yu Xia |
|
Director |
|
February 18, 2024 |
|
|
|
|
|
Summit Therapeutics Inc. S-3
Exhibit 4.1
SUMMIT THERAPEUTICS INC.
INDENTURE
Dated as of , 20
[_________________],
As Trustee
TABLE OF CONTENTS
|
|
|
|
|
Page |
|
|
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE |
6 |
|
|
|
1.1 |
Definitions |
6 |
|
|
|
1.2 |
Other Definitions |
8 |
|
|
|
1.3 |
Incorporation by Reference of Trust Indenture Act |
9 |
|
|
|
1.4 |
Rules of Construction |
9 |
|
|
ARTICLE II THE SECURITIES |
9 |
|
|
|
2.1 |
Issuable in Series |
9 |
|
|
|
2.2 |
Establishment of Terms of Series of Securities |
9 |
|
|
|
2.3 |
Execution and Authentication |
11 |
|
|
|
2.4 |
Registrar and Paying Agent |
12 |
|
|
|
2.5 |
Paying Agent to Hold Money in Trust |
12 |
|
|
|
2.6 |
Securityholder Lists |
12 |
|
|
|
2.7 |
Transfer and Exchange |
13 |
|
|
|
2.8 |
Mutilated, Destroyed, Lost and Stolen Securities |
13 |
|
|
|
2.9 |
Outstanding Securities |
13 |
|
|
|
2.10 |
Treasury Securities |
14 |
|
|
|
2.11 |
Temporary Securities |
14 |
|
|
|
2.12 |
Cancellation |
14 |
|
|
|
2.13 |
Defaulted Interest |
14 |
|
|
|
2.14 |
Global Securities |
14 |
|
|
|
2.15 |
CUSIP Numbers |
16 |
|
|
ARTICLE III REDEMPTION |
16 |
|
|
|
3.1 |
Notice to Trustee |
16 |
|
|
|
3.2 |
Selection of Securities to be Redeemed |
16 |
|
|
|
3.3 |
Notice of Redemption |
17 |
|
|
|
3.4 |
Effect of Notice of Redemption |
17 |
|
|
|
3.5 |
Deposit of Redemption Price |
17 |
|
|
|
3.6 |
Securities Redeemed in Part |
17 |
|
|
ARTICLE IV COVENANTS |
18 |
|
|
|
4.1 |
Payment of Principal and Interest |
18 |
|
|
|
4.2 |
SEC Reports |
18 |
|
|
|
4.3 |
Compliance Certificate |
18 |
|
|
|
4.4 |
Stay, Extension and Usury Laws |
18 |
|
|
|
ARTICLE V SUCCESSORS |
18 |
|
|
|
5.1 |
When Company May Merge, Etc. |
18 |
|
|
|
5.2 |
Successor Corporation Substituted |
19 |
|
|
ARTICLE VI DEFAULTS AND REMEDIES |
19 |
|
|
|
6.1 |
Events of Default |
19 |
|
|
|
6.2 |
Acceleration of Maturity; Rescission and Annulment |
20 |
|
|
|
6.3 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
20 |
|
|
|
6.4 |
Trustee May File Proofs of Claim |
20 |
|
|
|
6.5 |
Trustee May Enforce Claims Without Possession of Securities |
21 |
|
|
|
6.6 |
Application of Money Collected |
21 |
|
|
|
6.7 |
Limitation on Suits |
21 |
|
|
|
6.8 |
Unconditional Right of Holders to Receive Principal and Interest |
22 |
|
|
|
6.9 |
Restoration of Rights and Remedies |
22 |
|
|
|
6.10 |
Rights and Remedies Cumulative |
22 |
|
|
|
6.11 |
Delay or Omission Not Waiver |
22 |
|
|
|
6.12 |
Control by Holders |
22 |
|
|
|
6.13 |
Waiver of Past Defaults |
22 |
|
|
|
6.14 |
Undertaking for Costs |
23 |
|
|
ARTICLE VII TRUSTEE |
23 |
|
|
|
7.1 |
Duties of Trustee |
23 |
|
|
|
7.2 |
Rights of Trustee |
24 |
|
|
|
7.3 |
Individual Rights of Trustee |
25 |
|
|
|
7.4 |
Trustee’s Disclaimer |
25 |
|
|
|
7.5 |
Notice of Defaults |
25 |
|
|
|
7.6 |
Reports by Trustee to Holders |
25 |
|
|
|
7.7 |
Compensation and Indemnity |
25 |
|
|
|
7.8 |
Replacement of Trustee |
26 |
|
|
|
7.9 |
Successor Trustee by Merger, Etc. |
27 |
|
|
|
7.10 |
Eligibility; Disqualification |
27 |
|
|
|
7.11 |
Preferential Collection of Claims Against Company |
27 |
|
|
ARTICLE VIII SATISFACTION AND DISCHARGE; DEFEASANCE |
27 |
|
|
|
8.1 |
Satisfaction and Discharge of Indenture |
27 |
|
|
|
8.2 |
Application of Trust Funds; Indemnification |
27 |
|
|
|
8.3 |
Legal Defeasance of Securities of any Series |
28 |
|
|
|
8.4 |
Covenant Defeasance |
29 |
|
|
|
8.5 |
Repayment to Company |
30 |
|
|
|
8.6 |
Reinstatement |
30 |
|
|
|
ARTICLE IX AMENDMENTS AND WAIVERS |
30 |
|
|
|
9.1 |
Without Consent of Holders |
30 |
|
|
|
9.2 |
With Consent of Holders |
31 |
|
|
|
9.3 |
Limitations |
31 |
|
|
|
9.4 |
Compliance with Trust Indenture Act |
31 |
|
|
|
9.5 |
Revocation and Effect of Consents |
31 |
|
|
|
9.6 |
Notation on or Exchange of Securities |
32 |
|
|
|
9.7 |
Trustee Protected |
32 |
|
|
ARTICLE X MISCELLANEOUS |
32 |
|
|
|
10.1 |
Trust Indenture Act Controls |
32 |
|
|
|
10.2 |
Notices |
32 |
|
|
|
10.3 |
Communication by Holders with Other Holders |
33 |
|
|
|
10.4 |
Certificate and Opinion as to Conditions Precedent |
33 |
|
|
|
10.5 |
Statements Required in Certificate or Opinion |
33 |
|
|
|
10.6 |
Rules by Trustee and Agents |
33 |
|
|
|
10.7 |
Legal Holidays |
33 |
|
|
|
10.8 |
No Recourse Against Others |
33 |
|
|
|
10.9 |
Counterparts |
33 |
|
|
|
10.10 |
Governing Law; Waiver of Jury Trial; Consent to Jurisdiction |
34 |
|
|
|
10.11 |
No Adverse Interpretation of Other Agreements |
34 |
|
|
|
10.12 |
Successors |
34 |
|
|
|
10.13 |
Severability |
34 |
|
|
|
10.14 |
Table of Contents, Headings, Etc. |
34 |
|
|
|
10.15 |
Securities in a Foreign Currency |
34 |
|
|
|
10.16 |
Judgment Currency |
34 |
|
|
|
10.17 |
Force Majeure |
35 |
|
|
|
10.18 |
U.S.A. Patriot Act |
35 |
|
|
ARTICLE XI SINKING FUNDS |
35 |
|
|
|
11.1 |
Applicability of Article |
35 |
|
|
|
11.2 |
Satisfaction of Sinking Fund Payments with Securities |
35 |
|
|
|
11.3 |
Redemption of Securities for Sinking Fund |
36 |
Summit Therapeutics, Inc.
Reconciliation and tie between Trust Indenture
Act of 1939 and Indenture, dated as of , 20
|
|
|
|
|
§ 310(a)(1) |
|
|
|
7.10 |
(a)(2) |
|
|
|
7.10 |
(a)(3) |
|
|
|
Not Applicable |
(a)(4) |
|
|
|
Not Applicable |
(a)(5) |
|
|
|
7.10 |
(b) |
|
|
|
7.10 |
§ 311(a) |
|
|
|
7.11 |
(b) |
|
|
|
7.11 |
(c) |
|
|
|
Not Applicable |
§ 312(a) |
|
|
|
2.6 |
(b) |
|
|
|
10.3 |
(c) |
|
|
|
10.3 |
§ 313(a) |
|
|
|
7.6 |
(b)(1) |
|
|
|
7.6 |
(b)(2) |
|
|
|
7.6 |
(c)(1) |
|
|
|
7.6 |
(d) |
|
|
|
7.6 |
§ 314(a) |
|
|
|
4.2, 10.5 |
(b) |
|
|
|
Not Applicable |
(c)(1) |
|
|
|
10.4 |
(c)(2) |
|
|
|
10.4 |
(c)(3) |
|
|
|
Not Applicable |
(d) |
|
|
|
Not Applicable |
(e) |
|
|
|
10.5 |
(f) |
|
|
|
Not Applicable |
§ 315(a) |
|
|
|
7.1 |
(b) |
|
|
|
7.5 |
(c) |
|
|
|
7.1 |
(d) |
|
|
|
7.1 |
(e) |
|
|
|
6.14 |
§ 316(a) |
|
|
|
2.10 |
(a)(1)(A) |
|
|
|
6.12 |
(a)(1)(B) |
|
|
|
6.13 |
(b) |
|
|
|
6.8 |
§ 317(a)(1) |
|
|
|
6.3 |
(a)(2) |
|
|
|
6.4 |
(b) |
|
|
|
2.5 |
§ 318(a) |
|
|
|
10.1 |
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be part of the Indenture.
INDENTURE
Indenture dated as of _____________, 20____, between Summit
Therapeutics Inc., a company incorporated under the laws of Delaware (the “Company”), and _______________, a
national banking association organized under the laws of the United States, as trustee (the “Trustee”).
Each party agrees as follows for the benefit of the other party
and for the equal and ratable benefit of the Holders of the Securities issued under this Indenture.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
1.1 Definitions.
“Additional Amounts” means any additional
amounts which are required hereby or by any Security, under circumstances specified herein or therein, to be paid by the Company
in respect of certain taxes imposed on Holders specified herein or therein and which are owing to such Holders.
“Affiliate” of any specified person means
any other person directly or indirectly controlling or controlled by or under common control with such specified person. For the
purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by”
and “under common control with”), as used with respect to any person, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting
securities or by agreement or otherwise.
“Agent” means any Registrar, Paying Agent
or Notice Agent.
“Board of Directors” means the board of directors
of the Company or any duly authorized committee thereof.
“Board Resolution” means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the Company to have been adopted by the Board of Directors or pursuant
to authorization by the Board of Directors and to be in full force and effect on the date of the certificate and delivered to the
Trustee.
“Business Day” means, any day except a Saturday,
Sunday or a Legal Holiday in the City of New York, New York (or in connection with any payment, the place of payment) on which
banking institutions are authorized or required by law, regulation or executive order to close.
“Capital Stock” means any and all shares,
interests, participations, rights or other equivalents (however designated) of corporate stock.
“Company” means the party named as such above
until a successor replaces it and thereafter means the successor.
“Company Order” means a written order signed
in the name of the Company by an Officer.
“Corporate Trust Office” means the principal
office of the Trustee at which at any time this Indenture shall be administered, which office as of the date hereof is located
at the address specified in Section 10.2. With respect to presentation for transfer or exchange, conversions or principal
payment, such address shall be at the address specified in Section 10.2, or such other address as the Trustee may designate
from time to time by written notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee
(or such other address as such successor Trustee may designate from time to time by written notice to the Holders and the Company).
“Default” means any event which is, or after
notice or passage of time or both would be, an Event of Default.
“Depositary” means, with respect to the Securities
of any Series issuable or issued in whole or in part in the form of one or more Global Securities, the person designated as Depositary
for such Series by the Company, which Depositary shall be a clearing agency registered under the Exchange Act; and if at any time
there is more than one such person, “Depositary” as used with respect to the Securities of any Series shall mean the
Depositary with respect to the Securities of such Series.
“Discount Security” means any Security that
provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of acceleration of
the maturity thereof pursuant to Section 6.2.
“Dollars” and “$” means
the currency of the United States of America.
“Exchange Act” means the Securities Exchange
Act of 1934, as amended.
“Foreign Currency” means any currency or
currency unit issued by a government other than the government of the United States of America.
“Foreign Government Obligations” means, with
respect to Securities of any Series that are denominated in a Foreign Currency, direct obligations of, or obligations guaranteed
by, the government that issued or caused to be issued such currency for the payment of which obligations its full faith and credit
is pledged and which are not callable or redeemable at the option of the issuer thereof.
“GAAP” means accounting principles generally
accepted in the United States of America set forth in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board
or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which
are in effect as of the date of determination.
“Global Security” or “Global Securities”
means a Security or Securities, as the case may be, in the form established pursuant to Section 2.2 evidencing all or part
of a Series of Securities, issued to the Depositary for such Series or its nominee, and registered in the name of such Depositary
or nominee.
“Holder” or “Securityholder”
means a person in whose name a Security is registered on the books of the Registrar.
“Indenture” means this Indenture as amended
or supplemented from time to time and shall include the form and terms of particular Series of Securities established as contemplated
hereunder.
“interest” with respect to any Discount Security
which by its terms bears interest only after Maturity, means interest payable after Maturity.
“Maturity,” when used with respect to any
Security, means the date on which the principal of such Security becomes due and payable as therein or herein provided, whether
at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Officer” means the Chief Executive Officer,
Co-Chief Executive Officer, the Chief Financial Officer, the Treasurer or any Assistant Treasurer, the Secretary or any Assistant
Secretary, and any Vice President of the Company.
“Officer’s Certificate” means a certificate
signed by any Officer that meets the requirements of Section 10.5.
“Opinion of Counsel” means a written opinion
of legal counsel who is acceptable to the Trustee. The opinion may contain customary limitations, qualifications, conditions and
exceptions. The counsel may be an employee of or counsel to the Company.
“person” means any individual, corporation,
partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
“principal” of a Security means the principal
of the Security plus, when appropriate, the premium, if any, on, and any Additional Amounts in respect of, the Security.
“Responsible Officer” means any officer of
the Trustee in its Corporate Trust Office having direct responsibility for the administration of this Indenture and also means,
with respect to a particular corporate trust matter, any other officer to whom any corporate trust matter is referred because of
his or her knowledge of and familiarity with a particular subject.
“SEC” means the Securities and Exchange Commission.
“Securities” means the debentures, notes
or other debt instruments of the Company of any Series authenticated and delivered under this Indenture.
“Series” or “Series of Securities”
means each series of debentures, notes or other debt instruments of the Company created pursuant to Sections 2.1 and 2.2
hereof.
“Stated Maturity” when used with respect
to any Security, means the date specified in such Security as the fixed date on which the principal of such Security or interest
is due and payable.
“Subsidiary” of any specified person means
any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by such person or one or more of the other Subsidiaries of that person
or a combination thereof.
“TIA” means the Trust Indenture Act of 1939
(15 U.S. Code §§ 77aaa-77bbbb) as in effect on the date of this Indenture; provided, however, that in the
event the Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the extent required by any such amendment,
the Trust Indenture Act as so amended.
“Trustee” means the person named as the “Trustee”
in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter “Trustee” shall mean or include each person who is then a Trustee hereunder, and
if at any time there is more than one such person, “Trustee” as used with respect to the Securities of any Series shall
mean the Trustee with respect to Securities of that Series.
“U.S. Government Obligations” means securities
which are direct obligations of, or guaranteed by, the United States of America for the payment of which its full faith and credit
is pledged and which are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt
issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest
on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable
to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation
evidenced by such depositary receipt.
1.2 Other Definitions.
|
|
|
TERM |
|
DEFINED
IN SECTION |
“Bankruptcy Law” |
|
6.1 |
“Custodian” |
|
6.1 |
“Event of Default” |
|
6.1 |
“Judgment Currency” |
|
10.16 |
“Legal Holiday” |
|
10.7 |
“mandatory sinking fund payment” |
|
11.1 |
“New York Banking Day” |
|
10.16 |
“Notice Agent” |
|
2.4 |
“optional sinking fund payment” |
|
11.1 |
“Paying Agent” |
|
2.4 |
“Registrar” |
|
2.4 |
“Required Currency” |
|
10.16 |
“Specified Courts” |
|
10.10 |
“successor person” |
|
5.1 |
1.3 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this
Indenture. The following TIA terms used in this Indenture have the following meanings:
“Commission” means the SEC.
“indenture securities” means the Securities.
“indenture security holder” means a Securityholder.
“indenture to be qualified” means this Indenture.
“indenture trustee” or “institutional
trustee” means the Trustee.
“obligor” on the indenture securities means
the Company and any successor obligor upon the Securities.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise defined herein are used
herein as so defined.
1.4 Rules of Construction. Unless the context otherwise
requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) “or” is not exclusive;
(d) words in the singular include the plural, and in the plural
include the singular; and
(e) provisions apply to successive events and transactions.
ARTICLE II
THE SECURITIES
2.1 Issuable in Series. The aggregate principal amount
of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or
more Series. All Securities of a Series shall be identical except as may be set forth or determined in the manner provided in a
Board Resolution, a supplemental indenture or an Officer’s Certificate detailing the adoption of the terms thereof pursuant
to authority granted under a Board Resolution. In the case of Securities of a Series to be issued from time to time, the Board
Resolution, Officer’s Certificate or supplemental indenture detailing the adoption of the terms thereof pursuant to authority
granted under a Board Resolution may provide for the method by which specified terms (such as interest rate, maturity date, record
date or date from which interest shall accrue) are to be determined. Securities may differ between Series in respect of any matters,
provided that all Series of Securities shall be equally and ratably entitled to the benefits of the Indenture.
2.2 Establishment of Terms of Series of Securities. At
or prior to the issuance of any Securities within a Series, the following shall be established (as to the Series generally, in
the case of Subsection 2.2.1 and either as to such Securities within the Series or as to the Series generally in the case
of Subsections 2.2.2 through 2.2.23) by or pursuant to a Board Resolution, and set forth or determined in the manner
provided in a Board Resolution, supplemental indenture hereto or Officer’s Certificate:
2.2.1 the title (which shall distinguish the Securities of that
particular Series from the Securities of any other Series) and ranking (including the terms of any subordination provisions) of
the Series;
2.2.2 the price or prices (expressed as a percentage of the
principal amount thereof) at which the Securities of the Series will be issued;
2.2.3 any limit upon the aggregate principal amount of the Securities
of the Series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the Series pursuant to Section 2.7,
2.8, 2.11, 3.6 or 9.6);
2.2.4 the date or dates on which the principal of the Securities
of the Series is payable;
2.2.5 the rate or rates (which may be fixed or variable) per
annum or, if applicable, the method used to determine such rate or rates (including, but not limited to, any commodity, commodity
index, stock exchange index or financial index) at which the Securities of the Series shall bear interest, if any, the date or
dates from which such interest, if any, shall accrue, the date or dates on which such interest, if any, shall commence and be payable
and any regular record date for the interest payable on any interest payment date;
2.2.6 the place or places where the principal of and interest,
if any, on the Securities of the Series shall be payable, where the Securities of such Series may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of such Series and this
Indenture may be delivered, and the method of such payment, if by wire transfer, mail or other means;
2.2.7 if applicable, the period or periods within which, the
price or prices at which and the terms and conditions upon which the Securities of the Series may be redeemed, in whole or in part,
at the option of the Company;
2.2.8 the obligation, if any, of the Company to redeem or purchase
the Securities of the Series pursuant to any sinking fund or analogous provisions 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;
2.2.9 the dates, if any, on which and the price or prices at
which the Securities of the Series will be repurchased by the Company at the option of the Holders thereof and other detailed terms
and provisions of such repurchase obligations;
2.2.10 if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which the Securities of the Series shall be issuable;
2.2.11 the forms of the Securities of the Series and whether
the Securities will be issuable as Global Securities;
2.2.12 if other than the principal amount thereof, the portion
of the principal amount of the Securities of the Series that shall be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.2;
2.2.13 the currency of denomination of the Securities of the
Series, which may be Dollars or any Foreign Currency and, if such currency of denomination is a composite currency, the agency
or organization, if any, responsible for overseeing such composite currency;
2.2.14 the designation of the currency, currencies or currency
units in which payment of the principal of and interest, if any, on the Securities of the Series will be made;
2.2.15 if payments of principal of or interest, if any, on the
Securities of the Series are to be made in one or more currencies or currency units other than that or those in which such Securities
are denominated, the manner in which the exchange rate with respect to such payments will be determined;
2.2.16 the manner in which the amounts of payment of principal
of or interest, if any, on the Securities of the Series will be determined, if such amounts may be determined by reference to an
index based on a currency or currencies or by reference to a commodity, commodity index, stock exchange index or financial index;
2.2.17 the provisions, if any, relating to any security provided
for the Securities of the Series;
2.2.18 any addition to, deletion of or change in the Events
of Default which applies to any Securities of the Series and any change in the right of the Trustee or the requisite Holders of
such Securities to declare the principal amount thereof due and payable pursuant to Section 6.2;
2.2.19 any addition to, deletion of or change in the covenants
set forth in Articles IV or V which applies to Securities of the Series;
2.2.20 any Depositaries, interest rate calculation agents, exchange
rate calculation agents, conversion agents or other agents with respect to Securities of such Series if other than those appointed
herein;
2.2.21 the provisions, if any, relating to conversion or exchange
of any Securities of such Series, including if applicable, the conversion or exchange price, the conversion or exchange period,
provisions as to whether conversion or exchange will be mandatory, at the option of the Holders thereof or at the option of the
Company, the events requiring an adjustment of the conversion price or exchange price and provisions affecting conversion or exchange
if such Series of Securities are redeemed;
2.2.22 any other terms of the Series (which may supplement,
modify or delete any provision of this Indenture insofar as it applies to such Series), including any terms that may be required
under applicable law or regulations or advisable in connection with the marketing of Securities of that Series; and
2.2.23 whether any of the Company’s direct or indirect
Subsidiaries will guarantee the Securities of that Series, including the terms of subordination, if any, of such guarantees.
All Securities of any one Series need not be issued at the same
time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or pursuant to the Board
Resolution, supplemental indenture hereto or Officer’s Certificate referred to above. No Board Resolution, supplemental indenture
hereto or Officer’s Certificate may affect the Trustee’s own rights, duties or immunities under this Indenture or otherwise
with respect to any Series of Securities except as the Trustee may agree in writing.
2.3 Execution and Authentication. An Officer shall sign
the Securities for the Company by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds
that office at the time the Security is authenticated, the Security shall nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent. The signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall at any time, and from time to time, authenticate
Securities for original issue in the principal amount provided in the Board Resolution, supplemental indenture hereto or Officer’s
Certificate, upon receipt by the Trustee of a Company Order. Each Security shall be dated the date of its authentication.
The aggregate principal amount of Securities of any Series outstanding
at any time may not exceed any limit upon the maximum principal amount for such Series set forth in the Board Resolution, supplemental
indenture hereto or Officer’s Certificate delivered pursuant to Section 2.2, except as provided in Section 2.8.
Prior to the issuance of Securities of any Series, the Trustee
shall have received and (subject to Section 7.2) shall be fully protected in relying on: (a) the Board Resolution, supplemental
indenture hereto or Officer’s Certificate establishing the form of the Securities of that Series or of Securities within
that Series and the terms of the Securities of that Series or of Securities within that Series, (b) an Officer’s Certificate
complying with Section 10.4, (c) an Opinion of Counsel complying with Section 10.4 and (d) an Opinion of Counsel
(which may be the same Opinion of Counsel referred to in the preceding clause (c)) that such Securities, when they have been duly
executed, issued, and authenticated in accordance with the terms of the Indenture and delivered against payment therefor in the
circumstances described in such Opinion of Counsel, will be legally valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms.
The Trustee shall have the right to decline to authenticate
and deliver any Securities of such Series: (a) if the Trustee, being advised by counsel, determines that such action may not be
taken lawfully; or (b) if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability
to Holders of any then-outstanding Series of Securities.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has
the same rights as an Agent to deal with the Company or an Affiliate of the Company.
2.4 Registrar and Paying Agent. The Company shall maintain,
with respect to each Series of Securities, at the place or places specified with respect to such Series pursuant to Section
2.2, an office or agency where Securities of such Series may be presented or surrendered for payment (“Paying Agent”),
where Securities of such Series may be surrendered for registration of transfer or exchange (“Registrar”) and
where notices and demands to or upon the Company in respect of the Securities of such Series and this Indenture may be delivered
(“Notice Agent”). The Registrar shall keep a register with respect to each Series of Securities and to their
transfer and exchange. The Company will give prompt written notice to the Trustee of the name and address, and any change in the
name or address, of each Registrar, Paying Agent or Notice Agent. If at any time the Company shall fail to maintain any such required
Registrar, Paying Agent or Notice Agent or shall fail to furnish the Trustee with the name and address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints
the Trustee as its agent to receive all such presentations, surrenders, notices and demands; provided, however, that
any appointment of the Trustee as the Notice Agent shall exclude the appointment of the Trustee or any office of the Trustee as
an agent to receive the service of legal process on the Company.
The Company may from time to time designate one or more co-registrars,
additional paying agents or additional notice agents and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the Company of its obligations to maintain a Registrar, Paying
Agent and Notice Agent in each place so specified pursuant to Section 2.2 for Securities of any Series for such purposes.
The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the name
or address of any such co-registrar, additional paying agent or additional notice agent. The term “Registrar”
includes any co-registrar; the term “Paying Agent” includes any additional paying agent; and the term “Notice
Agent” includes any additional notice agent. The Company or any of its Affiliates may serve as Registrar or Paying Agent.
The Company hereby appoints the Trustee the initial Registrar,
Paying Agent and Notice Agent for each Series unless another Registrar, Paying Agent or Notice Agent, as the case may be, is appointed
prior to the time Securities of that Series are first issued.
2.5 Paying Agent to Hold Money in Trust. The Company
shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust, for the benefit
of Securityholders of any Series of Securities, or the Trustee, all money held by the Paying Agent for the payment of principal
of or interest on the Series of Securities, and will notify the Trustee in writing of any default by the Company in making any
such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee.
The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee,
the Paying Agent (if other than the Company or a Subsidiary of the Company) shall have no further liability for the money. If the
Company or a Subsidiary of the Company acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit
of Securityholders of any Series of Securities all money held by it as Paying Agent. Upon any bankruptcy, reorganization or similar
proceeding with respect to the Company, the Trustee shall serve as Paying Agent for the Securities.
2.6 Securityholder Lists. The Trustee shall preserve
in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Securityholders
of each Series of Securities and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the Company
shall furnish to the Trustee at least ten days before each interest payment date and at such other times as the Trustee may request
in writing a list, in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Securityholders
of each Series of Securities.
2.7 Transfer and Exchange. Where Securities of a Series
are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal
amount of Securities of the same Series, the Registrar shall register the transfer or make the exchange if its requirements for
such transactions are met. To permit registrations of transfers and exchanges, the Trustee shall authenticate Securities at the
Registrar’s request. No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly
permitted herein), but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer tax or similar governmental charge payable upon exchanges pursuant
to Sections 2.11, 3.6 or 9.6).
Neither the Company nor the Registrar shall be required (a)
to issue, register the transfer of, or exchange Securities of any Series for the period beginning at the opening of business fifteen
days immediately preceding the sending of a notice of redemption of Securities of that Series selected for redemption and ending
at the close of business on the day such notice is sent, or (b) to register the transfer of or exchange Securities of any Series
selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities selected, called
or being called for redemption in part.
2.8 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall execute, and the Trustee shall authenticate and deliver
in exchange therefor, a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity bond as may
be required by each of them to hold itself and any of its agents harmless, then, in the absence of notice to the Company or the
Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and, upon receipt of a Company
Order, the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security,
a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such
Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any Series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all other Securities of that Series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities.
2.9 Outstanding Securities. The Securities outstanding
at any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation,
those reductions in the interest on a Global Security effected by the Trustee in accordance with the provisions hereof and those
described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it
ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide
purchaser.
If the Paying Agent (other than the Company, a Subsidiary of
the Company or an Affiliate of the Company) holds on the Maturity of Securities of a Series money sufficient to pay such Securities
payable on that date, then on and after that date such Securities of the Series cease to be outstanding and interest on them ceases
to accrue.
The Company may purchase or otherwise acquire the Securities,
whether by open market purchases, negotiated transactions or otherwise. A Security does not cease to be outstanding because the
Company or an Affiliate of the Company holds the Security (but see Section 2.10 below).
In determining whether the Holders of the requisite principal
amount of outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder,
the principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the
Maturity thereof pursuant to Section 6.2.
2.10 Treasury Securities. In determining whether the
Holders of the required principal amount of Securities of a Series have concurred in any request, demand, authorization, direction,
notice, consent or waiver, Securities of a Series owned by the Company or any Affiliate of the Company shall be disregarded, except
that for the purposes of determining whether the Trustee shall be protected in relying on any such request, demand, authorization,
direction, notice, consent or waiver only Securities of a Series that a Responsible Officer of the Trustee actually knows are so
owned shall be so disregarded.
2.11 Temporary Securities. Until definitive Securities
are ready for delivery, the Company may prepare, and the Trustee shall authenticate, temporary Securities upon a Company Order.
Temporary Securities shall be substantially in the form of definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee upon receipt of a Company
Order shall authenticate definitive Securities of the same Series and date of maturity in exchange for temporary Securities. Until
so exchanged, temporary securities shall have the same rights under this Indenture as the definitive Securities.
2.12 Cancellation. The Company at any time may deliver
Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered
to them for registration of transfer, exchange or payment. The Trustee shall cancel all Securities surrendered for transfer, exchange,
payment, replacement or cancellation in accordance with its customary procedures (subject to the record retention requirements
of the Exchange Act and the Trustee) and deliver a certificate of such cancellation to the Company upon written request of the
Company. The Company may not issue new Securities to replace Securities that it has paid or delivered to the Trustee for cancellation.
2.13 Defaulted Interest. If the Company defaults in a
payment of interest on a Series of Securities, it shall pay the defaulted interest, plus, to the extent permitted by law, any interest
payable on the defaulted interest, to the persons who are Securityholders of the Series on a subsequent special record date. The
Company shall fix the record date and payment date. At least 10 days before the special record date, the Company shall send to
the Trustee and to each Securityholder of the Series a notice that states the special record date, the payment date and the amount
of interest to be paid. The Company may pay defaulted interest in any other lawful manner.
2.14 Global Securities.
2.14.1 Terms of Securities. A Board Resolution, a supplemental
indenture hereto or an Officer’s Certificate shall establish whether the Securities of a Series shall be issued in whole
or in part in the form of one or more Global Securities and the Depositary for such Global Security or Securities.
2.14.2 Transfer and Exchange. Notwithstanding any provisions
to the contrary contained in Section 2.7 of the Indenture and in addition thereto, any Global Security shall be exchangeable
pursuant to Section 2.7 of the Indenture for Securities registered in the names of Holders other than the Depositary for
such Security or its nominee only if (i) such Depositary notifies the Company that it is unwilling or unable to continue as Depositary
for such Global Security or if at any time such Depositary ceases to be a clearing agency registered under the Exchange Act, and,
in either case, the Company fails to appoint a successor Depositary registered as a clearing agency under the Exchange Act within
90 days of such event or (ii) the Company executes and delivers to the Trustee an Officer’s Certificate to the effect that
such Global Security shall be so exchangeable. Any Global Security that is exchangeable pursuant to the preceding sentence shall
be exchangeable for Securities registered in such names as the Depositary shall direct in writing in an aggregate principal amount
equal to the principal amount of the Global Security with like tenor and terms.
Except as provided in this Section 2.14.2, a Global Security
may not be transferred except as a whole by the Depositary with respect to such Global Security to a nominee of such Depositary,
by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by the Depositary or any such nominee
to a successor Depositary or a nominee of such a successor Depositary.
Neither the Trustee nor any Agent shall have any responsibility
for any actions taken or not taken by the Depositary.
2.14.3 Legends. Any Global Security issued hereunder
shall bear a legend in substantially the following form:
“THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING
OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. THIS SECURITY
IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY,
BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE
TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.”
In addition, so long as the Depository Trust Company (“DTC”)
is the Depositary, each Global Note registered in the name of DTC or its nominee shall bear a legend in substantially the following
form:
“UNLESS THIS GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY GLOBAL NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”
2.14.4 Acts of Holders. The Depositary, as a Holder,
may appoint agents and otherwise authorize participants to give or take any request, demand, authorization, direction, notice,
consent, waiver or other action which a Holder is entitled to give or take under the Indenture.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except
as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to
the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the “Act” of Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose
of this Indenture and conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public
or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or
writing acknowledged to such officer the execution thereof. Where such execution is by a signer acting in a capacity other than
such signer’s individual capacity, such certificate or affidavit shall also constitute sufficient proof of such signer’s
authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Global Securities or any Securities issued
in certificated form shall be proved by the Registrar.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the holder of every Security
issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted
or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such
Security.
(e) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, by or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, 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 Act may be given before or after such record date,
but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite proportion of Outstanding Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed
as of such record date; provided that no such authorization, agreement or consent by the Holders on such 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.
2.14.5 Payments. Notwithstanding the other provisions
of this Indenture, unless otherwise specified as contemplated by Section 2.2, payment of the principal of and interest,
if any, on any Global Security shall be made to the Holder thereof.
2.14.6 Consents, Declaration and Directions. The Company,
the Trustee and any Agent shall treat a person as the Holder of such principal amount of outstanding Securities of such Series
represented by a Global Security as shall be specified in a written statement of the Depositary or by the applicable procedures
of such Depositary with respect to such Global Security, for purposes of obtaining any consents, declarations, waivers or directions
required to be given by the Holders pursuant to this Indenture.
2.15 CUSIP Numbers. The Company in issuing the Securities
may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in
notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other elements of identification printed on the Securities, and any such redemption shall not
be affected by any defect in or omission of such numbers. The Company shall promptly notify the Trustee of any change that the
Company is aware of in the CUSIP numbers.
ARTICLE III
REDEMPTION
3.1 Notice to Trustee. The Company may, with respect
to any Series of Securities, reserve the right to redeem and pay the Series of Securities or may covenant to redeem and pay the
Series of Securities or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in
such Securities. If a Series of Securities is redeemable and the Company wants or is obligated to redeem prior to the Stated Maturity
thereof all or part of the Series of Securities pursuant to the terms of such Securities, it shall notify the Trustee in writing
of the redemption date and the principal amount of Series of Securities to be redeemed. The Company shall give the notice at least
5 days before the notice is delivered to the Holders, unless a shorter period is satisfactory to the Trustee.
3.2 Selection of Securities to be Redeemed. Unless otherwise
indicated for a particular Series by a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate, if
less than all the Securities of a Series are to be redeemed, the Securities of the Series to be redeemed will be selected as follows:
(a) if the Securities are in the form of Global Securities, in accordance with the procedures of the Depositary, (b) if the Securities
are listed on any national securities exchange, in compliance with the requirements of the principal national securities exchange,
if any, on which the Securities are listed, or (c) if not otherwise provided for under clause (a) or (b), in the manner that the
Trustee deems fair and appropriate, including pro rata, by lot or other method, unless otherwise required by law or applicable
stock exchange requirements, subject, in the case of Global Securities, to the applicable rules and procedures of the Depositary.
The Securities to be redeemed shall be selected from Securities of the Series outstanding not previously called for redemption.
Portions of the principal of Securities of the Series that have denominations larger than $1,000 may be selected for redemption.
Securities of the Series and portions of such securities it selected for redemption shall be in amounts of $1,000 or whole multiples
of $1,000 or, with respect to Securities of any Series issuable in other denominations pursuant to Section 2.2.10, the minimum
principal denomination for each Series and the authorized integral multiples thereof. Provisions of this Indenture that apply to
Securities of a Series called for redemption also apply to portions of Securities of that Series called for redemption.
3.3 Notice of Redemption. Unless otherwise indicated
for a particular Series by Board Resolution, a supplemental indenture hereto or an Officer’s Certificate, at least 15 days
but not more than 60 days before a redemption date, the Company shall send or cause to be sent by first-class mail or electronically,
in accordance with the procedures of the Depositary, a notice of redemption to each Holder whose Securities are to be redeemed.
The notice shall identify the Securities of the Series to
be redeemed and shall state:
(a) the redemption date;
(b) the redemption price (or manner of calculation if not then
known);
(c) the name and address of the Paying Agent;
(d) if any Securities are being redeemed in part, the portion
of the principal amount of such Securities to be redeemed and that, after the redemption date and upon surrender of such Security,
a new Security or Securities in principal amount equal to the unredeemed portion of the original Security shall be issued in the
name of the Holder thereof upon cancellation of the original Security;
(e) that Securities of the Series called for redemption must
be surrendered to the Paying Agent to collect the redemption price;
(f) that interest on Securities of the Series called for redemption
ceases to accrue on and after the redemption date unless the Company defaults in the deposit of the redemption price;
(g) the CUSIP number, if any; and
(h) any other information as may be required by the terms of
the particular Series or the Securities of a Series being redeemed.
At the Company’s request, the Trustee shall give the notice
of redemption in the Company’s name and at its expense, provided, however, that the Company has delivered to the Trustee,
at least 5 days (unless a shorter time shall be acceptable to the Trustee) prior to the notice date, an Officer’s Certificate
requesting that the Trustee give such notice and setting forth the information to be stated in such notice.
3.4 Effect of Notice of Redemption. Once notice of redemption
is sent as provided in Section 3.3, Securities of a Series called for redemption become due and payable on the redemption
date and at the redemption price. Except as otherwise provided in the supplemental indenture, Board Resolution or Officer’s
Certificate for a Series, a notice of redemption may not be conditional. Upon surrender to the Paying Agent, such Securities shall
be paid at the redemption price plus accrued interest to the redemption date.
3.5 Deposit of Redemption Price. On or before 11:00 a.m.,
New York City time, on the redemption date, the Company shall irrevocably deposit with the Paying Agent money sufficient (as determined
by the Company) to pay the redemption price of and accrued interest, if any, on all Securities to be redeemed on that date.
3.6 Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Trustee shall authenticate for the Holder a new Security of the same Series and the same
maturity equal in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE IV
COVENANTS
4.1 Payment of Principal and Interest. The Company covenants
and agrees for the benefit of the Holders of each Series of Securities that it will duly and punctually pay the principal of and
interest, if any, on the Securities of that Series in accordance with the terms of such Securities and this Indenture. On or before
11:00 a.m., New York City time, on the applicable payment date, the Company shall deposit with the Paying Agent money sufficient
to pay the principal of and interest, if any, on the Securities of each Series in accordance with the terms of such Securities
and this Indenture.
4.2 SEC Reports. To the extent any Securities of a Series
are outstanding, the Company shall deliver to the Trustee 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 SEC may by rules and regulations prescribe) which the Company
is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act within 15 days after it files such information,
documents and reports with the SEC. The Company also shall comply with the other provisions of TIA § 314(a). Reports, information
and documents filed with the SEC via the EDGAR system (or any successor system thereto) will be deemed to be delivered to the Trustee
as of the time of such filing via EDGAR for purposes of this Section 4.2, it being understood that the Trustee shall have
no responsibility whatsoever to determine if such filings have been made, and that the Trustee shall not be deemed to have knowledge
of the information contained therein.
Delivery of reports, information and documents to the Trustee
under this Section 4.2 are for informational purposes only and the Trustee’s receipt of the foregoing shall not constitute
constructive or actual notice of any information contained therein or determinable from information contained therein, including
the Company’s compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely exclusively on
Officer’s Certificates).
4.3 Compliance Certificate. To the extent any Securities
of a Series are outstanding, the Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the
Company, an Officer’s Certificate stating that a review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company
has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his/her knowledge the Company has kept, observed, performed and fulfilled each and
every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions
and conditions hereof (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default
of which the Officer may have knowledge).
4.4 Stay, Extension and Usury Laws. The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this Indenture or the Securities; and the Company (to the extent it may lawfully
do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not, by resort to any such
law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution
of every such power as though no such law has been enacted.
ARTICLE V
SUCCESSORS
5.1 When Company May Merge, Etc. The Company shall not
consolidate with or merge with or into, or convey, transfer or lease all or substantially all of its properties and assets to,
any person (a “successor person”) unless:
(a) the Company is the surviving corporation or the successor
person (if other than the Company) is a corporation organized and validly existing under the laws of any U.S. domestic jurisdiction
and expressly assumes, by a supplemental indenture, executed and delivered to the Trustee, the Company’s obligations on the
Securities and under this Indenture; and
(b) immediately after giving effect to the transaction, no Default
or Event of Default, shall have occurred and be continuing.
Where the Company is not the surviving corporation, the Company
shall deliver to the Trustee prior to the consummation of the proposed transaction an Officer’s Certificate to the foregoing
effect and an Opinion of Counsel stating that the proposed transaction and any supplemental indenture comply with this Indenture.
Notwithstanding the above, any Subsidiary of the Company may
consolidate with, merge into or transfer all or part of its properties to the Company. Neither an Officer’s Certificate nor
an Opinion of Counsel shall be required to be delivered in connection therewith.
5.2 Successor Corporation Substituted. Upon any consolidation
or merger, or any sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company in accordance
with Section 5.1, the successor corporation formed by such consolidation or into or with which the Company is merged or
to which such sale, lease, conveyance or other disposition is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if such successor person has been named as the Company
herein; provided, however, that the predecessor Company in the case of a sale, conveyance or other disposition (other
than a lease) shall be released from all obligations and covenants under this Indenture and the Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
6.1 Events of Default. “Event of Default,”
wherever used herein with respect to Securities of any Series, means any one of the following events, unless in the establishing
Board Resolution, supplemental indenture or Officer’s Certificate, it is provided that such Series shall not have the benefit
of said Event of Default:
(a) default in the payment of any interest on any Security of
that Series when it becomes due and payable, and continuance of such default for a period of 30 days (unless the entire amount
of such payment is deposited by the Company with the Trustee or with a Paying Agent prior to 11:00 a.m., New York City time, on
the 30th day of such period); or
(b) default in the payment of principal of any Security of that
Series at its Maturity; or
(c) default in the performance or breach of any covenant or
warranty of the Company in this Indenture (other than defaults pursuant to paragraphs (a) or (b) above or pursuant to a covenant
or warranty that has been included in this Indenture solely for the benefit of Series of Securities other than that Series), which
default continues uncured for a period of 60 days after there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the outstanding Securities
of that Series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice
is a “Notice of Default” hereunder; or
(d) 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, (iv) makes a general assignment
for the benefit of its creditors, or (v) generally is unable to pay its debts as the same become due; or
(e) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that: (i) is for relief against the Company in an involuntary case, (ii) appoints a Custodian of the Company
or 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 60 days; or
(f) any other Event of Default provided with respect to Securities
of that Series, which is specified in a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate, in
accordance with Section 2.2.18.
The term “Bankruptcy Law” means title 11,
U.S. Code or any similar U.S. Federal or State law for the relief of debtors. The term “Custodian” means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
The Company will provide the Trustee written notice of any Default
or Event of Default within 30 days of becoming aware of the occurrence of such Default or Event of Default, which notice will describe
in reasonable detail the status of such Default or Event of Default and what action the Company is taking or proposes to take in
respect thereof.
6.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any Series at the time outstanding occurs and is continuing (other than an
Event of Default referred to in Section 6.1(d) or (e)), then in every such case, the Trustee or the Holders of not
less than 25% in principal amount of the outstanding Securities of that Series may declare the principal amount (or, if any Securities
of that Series are Discount Securities, such portion of the principal amount as may be specified in the terms of such Securities)
of and accrued and unpaid interest, if any, on all of the Securities of that Series to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders) and, upon any such declaration, such principal amount (or specified
amount) and accrued and unpaid interest, if any, shall become immediately due and payable. If an Event of Default specified in
Section 6.1(d) or (e) shall occur, the principal amount (or specified amount) of and accrued and unpaid interest,
if any, on all outstanding Securities shall ipso facto become and be immediately due and payable without any declaration
or other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect
to any Series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter
in this Article provided, the Holders of a majority in principal amount of the outstanding Securities of that Series, by written
notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if all Events of Default with
respect to Securities of that Series, other than the non-payment of the principal and interest, if any, of Securities of that Series
which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent Default or impair
any right consequent thereon.
6.3 Collection of Indebtedness and Suits for Enforcement
by Trustee. The Company covenants that if:
(a) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a period of 30 days; or
(b) default is made in the payment of principal of any Security
at the Maturity thereof; or
(c) default is made in the deposit of any sinking fund payment,
if any, when and as due by the terms of a Security;
then, the Company will, upon demand of the Trustee, pay
to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal
and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and
any overdue interest at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection, including the compensation, reasonable expenses, disbursements
and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection
of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company
or any other obligor upon such Securities and collect the moneys adjudged or deemed to be payable in the manner provided by law
out of the property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to any Securities of any
Series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of
the Holders of Securities of such Series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect
and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
6.4 Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such
other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable
as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Securities and
to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any
claim for the compensation, reasonable expenses, disbursements and advances of the Trustee, its agents and counsel) and of the
Holders allowed in such judicial proceeding, and (b) to collect and receive any moneys or other property payable or deliverable
on any such claims and to distribute the same, and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount
due it for the compensation, reasonable expenses, disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
6.5 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the compensation, reasonable expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
6.6 Application of Money Collected. Any money or property
collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money or property on account of principal or interest, upon presentation of the Securities
and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee
under Section 7.7; and
Second: To the payment of the amounts then due and unpaid
for principal of and interest on the Securities 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 interest, respectively; and
Third: To the Company.
6.7 Limitation on Suits. No Holder of any Security of
any Series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that Series;
(b) the Holders of not less than 25% in principal amount of
the outstanding Securities of that Series shall have made written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity
or security satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by the Trustee in compliance
with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the outstanding Securities
of that Series;
it being understood, intended and expressly covenanted by the
Holder of every Security with every other Holder and the Trustee that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of
any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce
any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders
of the applicable Series.
6.8 Unconditional Right of Holders to Receive Principal and
Interest. Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is
absolute and unconditional, to receive payment of the principal of and interest, if any, on such Security on the Maturity of such
Security, including the Stated Maturity expressed in such Security (or, in the case of redemption, on the redemption date) and
to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
6.9 Restoration of Rights and Remedies. If the Trustee
or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively
to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
6.10 Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.8, no
right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right
or remedy hereunder, or otherwise, shall not, to the extent permitted by law, prevent the concurrent assertion or employment of
any other appropriate right or remedy.
6.11 Delay or Omission Not Waiver. No delay or omission
of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
6.12 Control by Holders. The Holders of a majority in
principal amount of the outstanding Securities of any Series 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 the Securities of such Series, provided that, (a) such direction shall not be in conflict with any rule of law or with
this Indenture, (b) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction,
(c) subject to the provisions of Section 7.1, the Trustee shall have the right to decline to follow any such direction if
the Trustee in good faith shall, by a Responsible Officer of the Trustee, determine that the proceeding so directed would involve
the Trustee in personal liability, and prior to taking any action as directed under this Section 6.12, the Trustee shall
be entitled to indemnity satisfactory to it against the losses, costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction.
6.13 Waiver of Past Defaults. The Holders of not less
than a majority in principal amount of the outstanding Securities of any Series may on behalf of the Holders of all the Securities
of such Series, by written notice to the Trustee and the Company, waive any past Default hereunder with respect to such Series
and its consequences, except a Default in the payment of the principal of or interest on any Security of such Series (provided,
however, that the Holders of a majority in principal amount of the outstanding Securities of any Series may rescind an acceleration
and its consequences, including any related payment default that resulted from such acceleration). Upon any such waiver, such Default
shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
6.14 Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Security by his 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, suffered 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 Company, to any suit instituted
by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the outstanding Securities of any Series, or to any suit instituted by any Holder for the enforcement of the payment
of the principal of or interest on any Security on or after the Maturity of such Security, including the Stated Maturity expressed
in such Security (or, in the case of redemption, on the redemption date).
ARTICLE VII
TRUSTEE
7.1 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(b) Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties that are specifically
set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the
Trustee.
(ii) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon Officer’s
Certificates or Opinions of Counsel furnished to the Trustee and conforming to the requirements of this Indenture; however,
in the case of any such Officer’s Certificates or Opinions of Counsel which by any provisions hereof are specifically required
to be furnished to the Trustee, the Trustee shall examine such Officer’s Certificates and Opinions of Counsel to determine
whether or not they conform to the form requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful misconduct, except that:
(i) This paragraph does not limit the effect of paragraph (b)
of this Section.
(ii) The Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved in a court of competent jurisdiction that the Trustee was negligent
in ascertaining the pertinent facts.
(iii) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it with respect to Securities of any Series in good faith in accordance with the direction
of the Holders of a majority in principal amount of the outstanding Securities of such Series 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 such Series in accordance with Section 6.12.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraph (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any
right or power unless it receives indemnity satisfactory to it against the losses, costs, expenses and liabilities which might
be incurred by it in performing such duty or exercising such right or power.
(f) The Trustee shall not be liable for interest or investment
on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need
not be segregated from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties, or in the exercise
of any of its rights or powers.
(h) The Paying Agent, the Registrar and any authenticating agent
shall be entitled to the protections and immunities as are set forth in paragraphs (e), (f) and (g) of this Section and in Section
7.2, each with respect to the Trustee.
7.2 Rights of Trustee.
(a) The Trustee may conclusively rely on and shall be protected
in acting or refraining from acting upon any document (whether in its original or facsimile form) believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officer’s Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes
or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any attorney or agent appointed with due care. No Depositary shall
be deemed an agent of the Trustee and the Trustee shall not be responsible for any act or omission by any Depositary.
(d) The Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized or within its rights or powers, provided that the Trustee’s
conduct does not constitute willful misconduct or negligence.
(e) The Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder without willful misconduct or negligence, and in reliance thereon.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities unless such
Holders shall have offered (and, if requested, provided) to the Trustee security or indemnity satisfactory to it against the losses,
costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
(g) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it may see fit.
(h) The Trustee shall not be deemed to have notice of any Default
or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references
the existence of a Default or Event of Default, the Securities generally or the Securities of a particular Series and this Indenture.
(i) In no event shall the Trustee be responsible or liable to
any person for special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including but not
limited to lost profits), even if the Trustee has been advised of the likelihood of such loss or damage and regardless of the form
of action.
(j) The permissive right of the Trustee to take the actions
permitted by this Indenture shall not be construed as an obligation or duty to do so.
(k) No bond or surety shall be required with respect to performance
of Trustee’s duties and powers.
(l) Under no circumstances shall the Trustee be liable in its
individual capacity for the obligations evidenced by the Securities.
(m) Any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Order and any resolution of the Board of Directors may be sufficiently evidenced by
a Board Resolution.
(n) The Trustee may request that the Company deliver a certificate
setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to
this Indenture.
(o) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by,
the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.
7.3 Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or an Affiliate
of the Company with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. The Trustee
is also subject to Sections 7.10 and 7.11.
7.4 Trustee’s Disclaimer. The Trustee shall not
be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Securities; the Trustee
shall not be accountable for the Company’s use of the proceeds from the Securities, or any money paid to the Company or upon
the Company’s direction under any provision of this Indenture; the Trustee shall not be responsible for the use or application
of any money received by any Paying Agent other than the Trustee; and the Trustee shall not be responsible for any statement herein
or in the Securities or any other document in connection with the sale of the Securities other than its authentication. The recitals
contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements
of the Company, and the Trustee or any Authenticating Agent assumes no responsibility for their correctness.
7.5 Notice of Defaults. If a Default or Event of Default
occurs and is continuing with respect to the Securities of any Series and if it is actually known to a Responsible Officer of the
Trustee, the Trustee shall send to each Securityholder of the Securities of that Series notice of a Default or Event of Default
within 90 days after it occurs or, if later, after a Responsible Officer of the Trustee has knowledge of such Default or Event
of Default. Except in the case of a Default or Event of Default in payment of principal of or interest on any Security of any Series,
the Trustee may withhold the notice if and so long as it in good faith determines that withholding the notice is in the interests
of Securityholders of that Series.
7.6 Reports by Trustee to Holders. Within 60 days after
each _________, commencing _______, 20____, the Trustee shall transmit by mail to all Securityholders, as their names and addresses
appear on the register kept by the Registrar, a brief report dated as of such anniversary date, in accordance with, and to the
extent required under, TIA § 313.
A copy of each report at the time of its sending to Securityholders
of any Series shall be filed with the SEC and each national securities exchange on which the Securities of that Series are listed.
The Company shall promptly notify the Trustee in writing when Securities of any Series are listed on any national securities exchange
or delisted from any national securities exchange.
7.7 Compensation and Indemnity. The Company shall pay
to the Trustee from time to time compensation for its services as the Company and the Trustee shall from time to time agree upon
in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust.
The Company shall reimburse the Trustee upon request for all reasonable out of pocket expenses incurred by it. Such expenses shall
include the reasonable compensation and expenses of the Trustee’s agents and counsel.
The Company shall indemnify each of the Trustee and any predecessor
Trustee (including for the cost of defending itself) against any cost, damages, losses, expense or liability, including taxes (other
than taxes based upon, measured by or determined by the income of the Trustee) incurred by it except as set forth in the next paragraph
in the performance of its duties under this Indenture or in connection with its acceptance of its obligations hereunder, as Trustee
or Agent. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Trustee to
so notify the Company shall not relieve the Company of its obligations hereunder, unless and to the extent that the Company is
materially prejudiced thereby. The Company shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may
have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for
any settlement made without its consent, which consent will not be unreasonably withheld. This indemnification shall apply to officers,
directors, employees, shareholders and agents of the Trustee.
The Company need not reimburse any expense or indemnify against
any loss or liability incurred by the Trustee or by any officer, director, employee, shareholder or agent of the Trustee through
willful misconduct or negligence, as finally adjudicated by a court of competent jurisdiction.
To secure the Company’s payment obligations in this Section,
the Trustee shall have a lien prior to the Securities of any Series on all money or property held or collected by the Trustee,
except that held in trust to pay principal of and interest on particular Securities of that Series.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.1(d) or (e) occurs, the expenses and the compensation for the services are
intended to constitute expenses of administration under any Bankruptcy Law.
The provisions of this Section shall survive the termination
of this Indenture or the resignation or removal of the Trustee.
7.8 Replacement of Trustee. A resignation or removal
of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance
of appointment as provided in this Section.
The Trustee may resign with respect to the Securities of one
or more Series by so notifying the Company at least 30 days prior to the date of the proposed resignation. The Holders of a majority
in principal amount of the Securities of any Series may remove the Trustee with respect to that Series by so notifying the Trustee
and the Company in writing at least 30 days prior to such removal. The Company may remove the Trustee with respect to Securities
of one or more Series with at least 30 days written notice if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee
or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists
in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within one year after the successor
Trustee takes office, the Holders of a majority in principal amount of the then-outstanding Securities may appoint a successor
Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with respect to the Securities of any
one or more Series does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee,
the Company or the Holders of at least a majority in principal amount of the Securities of the applicable Series may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Promptly after such acceptance, the retiring Trustee shall transfer all
property held by it as Trustee to the successor Trustee subject to the lien provided for in Section 7.7, the resignation
or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties
of the Trustee with respect to each Series of Securities for which it is acting as Trustee under this Indenture. A successor Trustee
shall send a notice of its succession to each Securityholder of each such Series. Notwithstanding replacement of the Trustee pursuant
to this Section 7.8, the Company’s obligations under Section 7.7 hereof shall continue for the benefit of the
retiring Trustee with respect to expenses and liabilities incurred by it for actions taken or omitted to be taken in accordance
with its rights, powers and duties under this Indenture prior to such replacement.
7.9 Successor Trustee by Merger, Etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation,
or national banking association, the successor corporation or national banking association without any further act shall be the
successor Trustee, subject to Section 7.10.
7.10 Eligibility; Disqualification. This Indenture always
shall have a Trustee who satisfies the requirements of TIA § 310(a) (1), (2) and (5). The Trustee always shall have a combined
capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition. The Trustee shall
comply with TIA § 310(b).
7.11 Preferential Collection of Claims Against Company.
The Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has
resigned or been removed shall be subject to TIA § 311(a) to the extent indicated.
ARTICLE VIII
SATISFACTION AND DISCHARGE; DEFEASANCE
8.1 Satisfaction and Discharge of Indenture. This Indenture
shall upon Company Order be discharged with respect to the Securities of any Series and cease to be of further effect as to all
Securities of such Series (except as hereinafter provided in this Section 8.1), and the Trustee, at the expense of the Company,
shall execute instruments acknowledging satisfaction and discharge of this Indenture, when
(a) either
(i) all Securities of such Series theretofore authenticated
and delivered (other than Securities that have been destroyed, lost or stolen and that have been replaced or paid) have been delivered
to the Trustee for cancellation; or
(ii) all such Securities of such Series not theretofore delivered
to the Trustee for cancellation
(1) have become due and payable by reason of sending a notice
of redemption or otherwise, or
(2) will become due and payable at their Stated Maturity within
one year, or
(3) have been called for redemption or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company, or
(4) are deemed paid and discharged pursuant to Section 8.3,
as applicable;
and the Company, in the case of (1), (2) or (3) above, shall
have irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust an amount of money or U.S. Government
Obligations, which amount shall be sufficient (as determined by the Company) for the purpose of paying and discharging each installment
of principal (including mandatory sinking fund or analogous payments) of and interest on all the Securities of such Series on the
dates such installments of principal or interest are due;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company shall have delivered to the Trustee an Officer’s
Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the satisfaction and
discharge contemplated by this Section have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 7.7, and, if money shall have been deposited with the Trustee
pursuant to clause (a) of this Section, the provisions of Sections 2.4, 2.7, 2.8, 8.2 and 8.5
shall survive.
8.2 Application of Trust Funds; Indemnification.
(a) Subject to the provisions of Section 8.5, all money
and U.S. Government Obligations or Foreign Government Obligations deposited with the Trustee pursuant to Section 8.1, 8.3
or 8.4 and all money received by the Trustee in respect of U.S. Government Obligations or Foreign Government Obligations
deposited with the Trustee pursuant to Section 8.1, 8.3 or 8.4, shall be held in trust and applied by it,
in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may determine, to the persons entitled thereto, of the principal
and interest for whose payment such money has been deposited with or received by the Trustee or to make mandatory sinking fund
payments or analogous payments as contemplated by Sections 8.1, 8.3 or 8.4.
(b) The Company shall pay and shall indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against U.S. Government Obligations or Foreign Government Obligations deposited
pursuant to Sections 8.1, 8.3 or 8.4 or the interest and principal received in respect of such obligations
other than any payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time
to time upon Company Order any U.S. Government Obligations or Foreign Government Obligations or money held by it as provided in
Sections 8.3 or 8.4 which, in the opinion of a nationally recognized firm of independent certified public accountants
or investment bank expressed in a written certification thereof delivered to the Trustee, are then in excess of the amount thereof
which then would have been required to be deposited for the purpose for which such U.S. Government Obligations or Foreign Government
Obligations or money were deposited or received. This provision shall not authorize the sale by the Trustee of any U.S. Government
Obligations or Foreign Government Obligations held under this Indenture.
8.3 Legal Defeasance of Securities of any Series. Unless
this Section 8.3 is otherwise specified, pursuant to Section 2.2, to be inapplicable to Securities of any Series,
the Company shall be deemed to have paid and discharged the entire indebtedness on all the outstanding Securities of any Series
on the 91st day after the date of the deposit referred to in subparagraph (d) hereof, and the provisions of this Indenture, as
it relates to such outstanding Securities of such Series, shall no longer be in effect (and the Trustee, at the expense of the
Company, shall, upon receipt of a Company Order, execute instruments acknowledging the same), except as to:
(a) the rights of Holders of Securities of such Series to receive,
from the trust funds described in subparagraph (d) hereof, (i) payment of the principal of and each installment of principal of
and interest on the outstanding Securities of such Series on the Maturity of such principal or installment of principal or interest
and (ii) the benefit of any mandatory sinking fund payments applicable to the Securities of such Series on the day on which such
payments are due and payable in accordance with the terms of this Indenture and the Securities of such Series;
(b) the provisions of Sections 2.4, 2.5, 2.7,
2.8, 7.7, 8.2, 8.3, 8.5 and 8.6; and
(c) the rights, powers, trusts and immunities of the Trustee
hereunder and the Company’s obligations in connection therewith;
provided that, the following conditions shall have been satisfied:
(d) the Company shall have irrevocably deposited or caused to
be deposited (except as provided in Section 8.2(c)) with the Trustee as trust funds specifically pledged as security for
and dedicated solely to the benefit of the Holders of such Securities (i) in the case of Securities of such Series denominated
in Dollars, cash in Dollars and/or U.S. Government Obligations, or (ii) in the case of Securities of such Series denominated in
a Foreign Currency (other than a composite currency), money and/or Foreign Government Obligations, which through the payment of
interest and principal in respect thereof in accordance with their terms, will provide (and without reinvestment and assuming no
tax liability will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in
cash, sufficient, in the opinion of a nationally recognized firm of independent public accountants or investment bank expressed
in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal of and interest,
on and any mandatory sinking fund payments in respect of all the Securities of such Series on the dates such installments of principal
or interest and such sinking fund payments are due;
(e) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which
it is bound;
(f) no Default or Event of Default with respect to the Securities
of such Series shall have occurred and be continuing on the date of such deposit or during the period ending on the 91st day after
such date;
(g) the Company shall have delivered to the Trustee an Officer’s
Certificate and an Opinion of Counsel to the effect that (i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the date of execution of this Indenture, there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders
of the Securities of such Series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income tax on the same amount and in the same manner and at the same times
as would have been the case if such deposit, defeasance and discharge had not occurred;
(h) the Company shall have delivered to the Trustee an Officer’s
Certificate stating that the deposit was not made by the Company with the intent of defeating, hindering, delaying or defrauding
any other creditors of the Company; and
(i) the Company shall have delivered to the Trustee an Officer’s
Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the defeasance contemplated
by this Section have been complied with.
8.4 Covenant Defeasance. Unless this Section 8.4
is otherwise specified pursuant to Section 2.2 to be inapplicable to Securities of any Series, the Company may omit to comply
with respect to the Securities of any Series with any term, provision or condition set forth under Sections 4.2, 4.3,
4.4 and 5.1 and, unless otherwise specified therein, any additional covenants specified in a supplemental indenture
for such Series of Securities or a Board Resolution or an Officer’s Certificate delivered pursuant to Section 2.2
(and the failure to comply with any such covenants shall not constitute a Default or Event of Default with respect to such Series
under Section 6.1) and the occurrence of any event specified in a supplemental indenture for such Series of Securities or
a Board Resolution or an Officer’s Certificate delivered pursuant to Section 2.2.18 and designated as an Event of
Default shall not constitute a Default or Event of Default hereunder, with respect to the Securities of such Series, but, except
as specified above, the remainder of this Indenture and such Securities will be unaffected thereby; provided that the following
conditions shall have been satisfied:
(a) with reference to this Section 8.4, the Company has
irrevocably deposited or caused to be irrevocably deposited (except as provided in Section 8.2(c)) with the Trustee as trust
funds in trust for the purpose of making the following payments specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of such Securities (i) in the case of Securities of such Series denominated in Dollars, cash in Dollars
and/or U.S. Government Obligations, or (ii) in the case of Securities of such Series denominated in a Foreign Currency (other than
a composite currency), money and/or Foreign Government Obligations, which through the payment of interest and principal in respect
thereof in accordance with their terms, will provide (and without reinvestment and assuming no tax liability will be imposed on
such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient, in the opinion
of a nationally recognized firm of independent certified public accountants or investment bank expressed in a written certification
thereof delivered to the Trustee, to pay and discharge each installment of principal (including mandatory sinking fund or analogous
payments) of and interest on all the Securities of such Series on the dates such installments of principal or interest are due;
(b) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which
it is bound;
(c) no Default or Event of Default with respect to the Securities
of such Series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee an Officer’s
Certificate and an Opinion of Counsel to the effect that (i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the date of execution of this Indenture, there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm, subject to
customary exclusions, the Holders of the Securities of such Series will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit, covenant defeasance and discharge and will be subject to Federal income tax on the same amount
and in the same manner and at the same times as would have been the case if such deposit, covenant defeasance and discharge had
not occurred;
(e) the Company shall have delivered to the Trustee an Officer’s
Certificate stating the deposit was not made by the Company with the intent of defeating, hindering, delaying or defrauding any
other creditors of the Company; and
(f) the Company shall have delivered to the Trustee an Officer’s
Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the covenant
defeasance contemplated by this Section have been complied with.
8.5 Repayment to Company. Subject to applicable abandoned
property law, the Trustee and the Paying Agent shall pay to the Company upon request any money held by them for the payment of
principal and interest that remains unclaimed for two years. After that, Securityholders entitled to the money must look to the
Company for payment as general creditors unless an applicable abandoned property law designates another person, and the Trustee
shall have no further liability with respect to such money.
8.6 Reinstatement. If the Trustee or the Paying Agent
is unable to apply any money deposited with respect to Securities of any Series in accordance with Section 8.1 by reason
of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the obligations of the Company under this Indenture with respect to the Securities of such
Series and under the Securities of such Series shall be revived and reinstated as though no deposit had occurred pursuant to Section
8.1 until such time as the Trustee or the Paying Agent is permitted to apply all such money in accordance with Section 8.1;
provided, however, that if the Company has made any payment of principal of or interest on or any Additional Amounts
with respect to any Securities because of the reinstatement of its obligations, the Company shall be subrogated to the rights of
the Holders of such Securities to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying
Agent after payment in full to the Holders.
ARTICLE IX
AMENDMENTS AND WAIVERS
9.1 Without Consent of Holders. The Company and the Trustee
may amend or supplement this Indenture or the Securities of one or more Series without the consent of any Securityholder:
(a) to cure any ambiguity, defect or inconsistency as evidenced
by an Officer’s Certificate;
(b) to comply with Article V;
(c) to provide for uncertificated Securities in addition to
or in place of certificated Securities;
(d) to add guarantees with respect to Securities of any Series
or secure Securities of any Series;
(e) to surrender any of the Company’s rights or powers
under this Indenture;
(f) to add covenants or events of default for the benefit of
the holders of Securities of any Series;
(g) to comply with the applicable procedures of the applicable
depositary;
(h) to make any change that does not adversely affect the rights
of any Securityholder;
(i) to provide for the issuance of and establish the form and
terms and conditions of Securities of any Series as permitted by this Indenture;
(j) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more Series and to 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;
(k) to comply with requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA;
(l) to add to, change or eliminate any provision of this Indenture
or the Securities of such Series in accordance with the TIA, or to comply with the provisions of DTC, Euroclear or Clearstream
or the Trustee with respect to provisions of this Indenture or the Securities of such Series relating to transfers or exchanges
of the Securities of such Series or beneficial interests in the Securities of such Series; or
(m) to conform any provision of this Indenture, insofar as it
relates to the Securities of such Series, to the description of the Securities of such Series in the prospectus supplement relating
to the offering of the Securities of such Series.
9.2 With Consent of Holders. The Company and the Trustee
may enter into a supplemental indenture with the written consent of the Holders of at least a majority in aggregate principal amount
of the outstanding Securities of each Series affected by such supplemental indenture (including consents obtained in connection
with a tender offer or exchange offer for the Securities of such Series), 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
the rights of the Securityholders of each such Series. Except as provided in Section 6.13, the Holders of at least a majority
in aggregate principal amount of the outstanding Securities of any Series by notice to the Trustee (including consents obtained
in connection with a tender offer or exchange offer for the Securities of such Series) may waive compliance by the Company with
any provision of this Indenture or the Securities with respect to such Series.
It shall not be necessary for the consent of the Holders of
Securities under this Section 9.2 to approve the particular form of any proposed supplemental indenture or waiver, but it
shall be sufficient if such consent approves the substance thereof. After a supplemental indenture or waiver under this Section
becomes effective, the Company shall send to the Holders of Securities affected thereby, a notice briefly describing the supplemental
indenture or waiver. Any failure by the Company to send such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such supplemental indenture or waiver.
9.3 Limitations. Without the consent of each Securityholder
affected, an amendment or waiver may not:
(a) reduce the principal amount of Securities whose Holders
must consent to an amendment, supplement or waiver;
(b) reduce the rate of or extend the time for payment of interest
(including default interest) on any Security;
(c) reduce the principal or change the Stated Maturity of any
Security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation;
(d) reduce the principal amount of Discount Securities payable
upon acceleration of the maturity thereof;
(e) waive a Default or Event of Default in the payment of the
principal of or interest, if any, on any Security (except a rescission of acceleration of the Securities of any Series by the Holders
of at least a majority in principal amount of the outstanding Securities of such Series and a waiver of the payment default that
resulted from such acceleration);
(f) make the principal of or interest, if any, on any Security
payable in any currency other than that stated in the Security;
(g) make any change in Sections 6.8, 6.13 or 9.3
(this sentence); or
(h) waive a redemption payment with respect to any Security,
provided that such redemption is made at the Company’s option.
9.4 Compliance with Trust Indenture Act. Every amendment
to this Indenture or the Securities of one or more Series shall be set forth in a supplemental indenture hereto that complies with
the TIA as then in effect.
9.5 Revocation and Effect of Consents. Until an amendment
is set forth in a supplemental indenture or a waiver becomes effective, a consent to it by a Holder of a Security is a continuing
consent by the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting
Holder’s Security, even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder
may revoke the consent as to his Security or portion of a Security if the Trustee receives the notice of revocation before the
date of the supplemental indenture or the date the waiver becomes effective.
Any amendment or waiver once effective shall bind every Securityholder
of each Series affected by such amendment or waiver unless it is of the type described in any of clauses (a) through (h) of Section
9.3. In that case, the amendment or waiver shall bind each Holder of a Security who has consented to it and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to give their consent or take any other action described above or required
or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the second immediately preceding
paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those persons, shall
be entitled to give such consent or to revoke any consent previously given or take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or effective for more than 120 days after such record
date.
9.6 Notation on or Exchange of Securities. The Company
or the Trustee may place an appropriate notation about an amendment or waiver on any Security of any Series thereafter authenticated.
The Company in exchange for Securities of that Series may issue, and the Trustee shall authenticate upon receipt of a Company Order
in accordance with Section 2.3, new Securities of that Series that reflect the amendment or waiver.
9.7 Trustee Protected. In executing, or accepting the
additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created
by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 7.1) shall be fully protected in relying
upon, an Officer’s Certificate or an Opinion of Counsel or both complying with Section 10.4 and stating that the supplemental
indenture is authorized or permitted by this Indenture and constitutes a legal valid and binding obligation of the Company, enforceable
against it in accordance with its terms. The Trustee shall sign all supplemental indentures upon delivery of such an Officer’s
Certificate or Opinion of Counsel or both, except that the Trustee need not sign any supplemental indenture that adversely affects
its rights, duties, liabilities or immunities under this Indenture.
ARTICLE X
MISCELLANEOUS
10.1 Trust Indenture Act Controls. If any provision of
this Indenture limits, qualifies, or conflicts with another provision which is required or deemed to be included in this Indenture
by the TIA, such required or deemed provision shall control.
10.2 Notices. Any notice or communication by the Company
or the Trustee to the other, or by a Holder to the Company or the Trustee, is duly given if in writing and delivered in person
or mailed by first-class mail (registered or certified, return receipt requested), facsimile transmission, email or overnight air
courier guaranteeing next day delivery, to the others’ address:
if to the Company:
Summit Therapeutics, Inc.
2882 Sand Hill Road, Suite 106
Menlo Park, CA 94025
Attention: Ankur Dhingra
with a copy to:
Baker & Hostetler LLP
45 Rockefeller Plaza
New York, New York 10111
Attention: Adam Finerman
if to the Trustee:
Attention:
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications. Any notice or communication delivered to the Trustee
shall be deemed effective upon actual receipt thereof.
Any notice or communication to a Securityholder shall be sent
electronically or by first-class mail to his address shown on the register kept by the Registrar, in accordance with the procedures
of the Depositary. Failure to send a notice or communication to a Securityholder of any Series or any defect in it shall not affect
its sufficiency with respect to other Securityholders of that or any other Series.
If a notice or communication is sent or published in the manner
provided above, within the time prescribed, it is duly given, whether or not the Securityholder receives it.
If the Company sends a notice or communication to Securityholders,
it shall send a copy to the Trustee and each Agent at the same time.
Notwithstanding any other provision of this Indenture or any
Security, where this Indenture or any Security provides for notice of any event (including any notice of redemption) to a Holder
of a Global Security (whether by mail or otherwise), such notice shall be sufficiently given to the Depositary for such Security
(or its designee) pursuant to the customary procedures of such Depositary.
10.3 Communication by Holders with Other Holders. Securityholders
of any Series may communicate pursuant to TIA § 312(b) with other Securityholders of that Series or any other Series with
respect to their rights under this Indenture or the Securities of that Series or all Series. The Company, the Trustee, the Registrar
and anyone else shall have the protection of TIA § 312(c).
10.4 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish
to the Trustee:
(a) an Officer’s Certificate stating that, in the opinion
of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied
with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
10.5 Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA § 314(a)(4)) shall comply with the provisions of TIA § 314(e) and shall include:
(a) a statement that the person making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such person, he has
made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
10.6 Rules by Trustee and Agents. The Trustee may make
reasonable rules for action by or a meeting of Securityholders of one or more Series. Any Agent may make reasonable rules and set
reasonable requirements for its functions.
10.7 Legal Holidays. A “Legal Holiday”
is any day that is not a Business Day. If a payment date is a Legal Holiday at a place of payment, payment may be made at that
place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period.
10.8 No Recourse Against Others. A director, officer,
employee or stockholder (past or present), as such, of the Company shall not have any liability for any obligations of the Company
under the Securities or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation.
Each Securityholder by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration
for the issue of the Securities.
10.9 Counterparts. This Indenture may be executed in
any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute one and the same agreement. The exchange of copies of this Indenture
and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as
to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted
by facsimile or PDF shall be deemed to be their original signatures for all purposes.
10.10 Governing Law; Waiver of Jury Trial; Consent to Jurisdiction.
THIS INDENTURE AND THE SECURITIES, INCLUDING ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THE INDENTURE OR THE SECURITIES,
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. THE COMPANY, THE TRUSTEE AND THE HOLDERS (BY THEIR ACCEPTANCE OF THE SECURITIES)
EACH HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Any legal suit, action or proceeding arising out of or based
upon this Indenture or the transactions contemplated hereby may be instituted in the federal courts of the United States of America
located in the City of New York or the courts of the State of New York, in each case located in the City of New York (collectively,
the “Specified Courts”), and each party irrevocably submits to the nonexclusive jurisdiction of such courts
in any such suit, action or proceeding. Service of any process, summons, notice or document by mail (to the extent allowed under
any applicable statute or rule of court) to such party’s address set forth above shall be effective service of process for
any suit, action or other proceeding brought in any such court. The Company, the Trustee and the Holders (by their acceptance of
the Securities) each hereby irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other
proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim any such suit, action
or other proceeding has been brought in an inconvenient forum.
10.11 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt agreement of the Company or a Subsidiary of the Company.
Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
10.12 Successors. All agreements of the Company in this
Indenture and the Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind its successor.
10.13 Severability. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
10.14 Table of Contents, Headings, Etc. The Table of
Contents, Cross Reference Table, and headings of the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
10.15 Securities in a Foreign Currency. Unless otherwise
specified in a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate delivered pursuant to Section
2.2 of this Indenture with respect to a particular Series of Securities, whenever for purposes of this Indenture any action
may be taken by the Holders of a specified percentage in aggregate principal amount of Securities of all Series or all Series affected
by a particular action at the time outstanding and, at such time, there are outstanding Securities of any Series which are denominated
in more than one currency, then the principal amount of Securities of such Series which shall be deemed to be outstanding for the
purpose of taking such action shall be determined by converting any such other currency into a currency that is designated upon
issuance of any particular Series of Securities. Unless otherwise specified in a Board Resolution, a supplemental indenture hereto
or an Officer’s Certificate delivered pursuant to Section 2.2 of this Indenture with respect to a particular Series
of Securities, such conversion shall be at the spot rate for the purchase of the designated currency as published in The Financial
Times in the “Currency Rates” section (or, if The Financial Times is no longer published, or if such information is
no longer available in The Financial Times, such source as may be selected in good faith by the Company) on any date of determination.
The provisions of this paragraph shall apply in determining the equivalent principal amount in respect of Securities of a Series
denominated in currency other than Dollars in connection with any action taken by Holders of Securities pursuant to the terms of
this Indenture.
All decisions and determinations provided for in the preceding
paragraph shall, in the absence of manifest error, to the extent permitted by law, be conclusive for all purposes and irrevocably
binding upon the Trustee and all Holders.
10.16 Judgment Currency. The Company agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is
necessary to convert the sum due in respect of the principal of or interest or other amount on the Securities of any Series (the
“Required Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”),
the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in
the City of New York the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered,
unless such day is not a New York Banking Day, then the rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in the City of New York the Required Currency with the Judgment Currency on the New
York Banking Day preceding the day on which final unappealable judgment is entered and (b) its obligations under this Indenture
to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, any recovery pursuant to any
judgment (whether or not entered in accordance with subsection (a)), in any currency other than the Required Currency, except to
the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action
for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the
full amount of the Required Currency so expressed to be payable, and (iii) shall not be affected by judgment being obtained for
any other sum due under this Indenture. For purposes of the foregoing, “New York Banking Day” means any day
except a Saturday, Sunday or a Legal Holiday in the City of New York on which banking institutions are authorized or required by
law, regulation or executive order to close.
10.17 Force Majeure. In no event shall the Trustee be
responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly
or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism,
civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities,
communications or computer (software and hardware) services, it being understood that the Trustee shall use reasonable best efforts
which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
10.18 U.S.A. Patriot Act. The parties hereto acknowledge
that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee is required to obtain, verify, and record information
that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to
this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy
the requirements of the U.S.A. Patriot Act.
ARTICLE XI
SINKING FUNDS
11.1 Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of the Securities of a Series if so provided by the terms of
such Securities pursuant to Section 2.2 and except as otherwise permitted or required by any form of Security of such Series
issued pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for
by the terms of the Securities of any Series is herein referred to as a “mandatory sinking fund payment” and
any other amount provided for by the terms of Securities of such 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 11.2. Each sinking fund payment shall be applied to the redemption of
Securities of any Series as provided for by the terms of the Securities of such Series.
11.2 Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any sinking fund payment with respect to the Securities of any Series to
be made pursuant to the terms of such Securities, (1) deliver outstanding Securities of such Series to which such sinking fund
payment is applicable (other than any of such Securities previously called for mandatory sinking fund redemption) and (2) apply
as credit Securities of such Series to which such sinking fund payment is applicable and which have been repurchased by the Company
or redeemed either at the election of the Company pursuant to the terms of such Series of Securities (except pursuant to any mandatory
sinking fund) or through the application of permitted optional sinking fund payments or other optional redemptions pursuant to
the terms of such Securities, provided that such Securities have not been previously so credited. Such Securities shall be received
by the Trustee, together with an Officer’s Certificate with respect thereto, not later than 15 days prior to the date on
which the Trustee begins the process of selecting Securities for redemption, and shall be credited for such purpose by the Trustee
at the 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. If as a result of the delivery or credit of Securities in lieu of cash payments pursuant
to this Section 11.2, the principal amount of Securities of such Series to be redeemed in order to exhaust the aforesaid
cash payment shall be less than $100,000, the Trustee need not call Securities of such Series for redemption, except upon receipt
of a Company Order that such action be taken, and such cash payment shall be held by the Trustee or a Paying Agent and applied
to the next succeeding sinking fund payment, provided, however, that the Trustee or such Paying Agent shall from
time to time upon receipt of a Company Order pay over and deliver to the Company any cash payment so being held by the Trustee
or such Paying Agent upon delivery by the Company to the Trustee of Securities of that Series purchased by the Company having an
unpaid principal amount equal to the cash payment required to be released to the Company.
11.3 Redemption of Securities for Sinking Fund. Not less
than 45 days (unless otherwise indicated in the Board Resolution, supplemental indenture hereto or Officer’s Certificate
in respect of a particular Series of Securities) prior to each sinking fund payment date for any Series of Securities, the Company
will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing mandatory sinking fund payment
for that Series pursuant to the terms of that Series, the portion thereof, if any, which is to be satisfied by payment of cash
and the portion thereof, if any, which is to be satisfied by delivering and crediting of Securities of that Series pursuant to
Section 11.2, and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and
the Company shall thereupon be obligated to pay the amount therein specified. Not less than 30 days (unless otherwise indicated
in the Board Resolution, Officer’s Certificate or supplemental indenture in respect of a particular Series of Securities)
before each such sinking fund payment date, the Securities to be redeemed upon such sinking fund payment date will be selected
in the manner specified in Section 3.2 and the Company shall send or cause to be sent a notice of the redemption thereof
to be given in the name of and at the expense of the Company in the manner provided in and in accordance with Section 3.3.
Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in
Sections 3.4, 3.5 and 3.6.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed as of the day and year first above written.
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SUMMIT THERAPEUTICS INC. |
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By: |
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Name: |
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Its: |
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____________________, as Trustee |
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By: |
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Name: |
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Its: |
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Summit Therapeutics Inc. S-3
Exhibit 5.1
February 20, 2024
Summit Therapeutics Inc.
601 Brickell Key Drive, Suite 1000
Miami, FL 33131
Ladies and Gentlemen:
We have acted as counsel
to Summit Therapeutics Inc., a Delaware corporation (the “Company”), in connection with the filing of the Company’s
Registration Statement on Form S-3 (the “Registration Statement”) with the Securities and Exchange Commission (the
“Commission”) under the Securities Act of 1933, as amended (the “Act”).
The Registration
Statement relates to (i) the proposed issuance and sale by the Company, from time to time, pursuant to Rule 415 under the Act,
as set forth in the Registration Statement, the prospectus contained therein (the “Prospectus”) and the supplements
to the Prospectus referred to therein (each a “Prospectus Supplement”), of up to an aggregate offering price of $450,000,000
or the equivalent thereof, of shares of the Company’s common stock, $0.01 par value per share (the “Common Stock”),
shares of the Company’s preferred stock, $0.01 par value per share (the “Preferred Stock”), the Company’s
debt securities (the “Debt Securities”), depositary shares (the “Depositary Shares”) of the Company representing
a fractional interest in a share of Preferred Stock of the Company, warrants to purchase any of the securities described above
(the “Warrants”), subscription rights to purchase the Company’s Common Stock, Preferred Stock, Warrants or Debt
Securities or units consisting of some or all of these securities (the “Subscription Rights”), purchase contracts of
the Company with respect to the securities of the Company or securities of an unaffiliated entity (the “Purchase Contracts”),
and units consisting of any of the securities described above in any combination (the “Units” and together with the
Common Stock, the Preferred Stock, the Debt Securities, the Depositary Shares, the Warrants, the Subscription Rights, and the Purchase
Contracts are collectively referred to herein as the “Securities”) and (ii) the registration for resale of 2,976,190
shares of the Company’s Common Stock held by the selling stockholder named in the Registration Statement (the “Shares”).
The Securities
are to be sold from time to time as set forth in the Registration Statement, the Prospectus contained therein and the Prospectus
Supplements. The Debt Securities are to be issued pursuant to a debt securities indenture (the “Indenture”), the form
of which has been filed as an exhibit to the Registration Statement and is to be entered into between the Company and a trustee
to be named in a Prospectus Supplement to the Registration Statement (the “Trustee”). The Securities are to be sold
pursuant to a purchase, underwriting, subscription or similar agreement in substantially the form to be filed under a Current Report
on Form 8-K. The Debt Securities are to be issued in the forms set forth in the Indenture. The Indenture may be supplemented, as
applicable, in connection with the issuance of each such series of Debt Securities, by a supplemental indenture or other appropriate
action of the Company creating such series of Debt Securities.
We have examined
instruments, documents, certificates and records that we have deemed relevant and necessary for the basis of our opinions hereinafter
expressed. In such examination, we have assumed: (i) the authenticity of original documents and the genuineness of all signatures;
(ii) the conformity to the originals of all documents submitted to us as copies; (iii) the truth, accuracy and completeness of
the information, representations and warranties contained in the instruments, documents, certificates and records we have reviewed;
(iv) that the Registration Statement, and any amendments thereto (including post-effective amendments), will have become effective
and remain effective under the Act at the time of issuance and sale of the Securities; (v) that a Prospectus Supplement will have
been filed with the Commission describing the Securities offered thereby; (vi) that the Securities will be issued and sold in compliance
with applicable U.S. federal and state securities laws and in the manner stated in the Registration Statement and the applicable
Prospectus Supplement; (vii) that 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; (viii) that any
Securities issuable upon conversion, exchange, redemption or exercise of any Securities being offered will be duly authorized,
created and, if appropriate, reserved for issuance upon such conversion, exchange, redemption or exercise; (ix) with respect to
shares of Common Stock or Preferred Stock offered, that there will be sufficient shares of Common Stock or Preferred Stock authorized
under the Company’s organizational documents that are not otherwise reserved for issuance; and (x) the legal capacity of
all natural persons. As to any facts material to the opinions expressed herein that were not independently established or verified,
we have relied upon oral or written statements and representations of officers and other representatives of the Company.
Based on such examination, we
are of the opinion that:
1. With respect to shares of the Common Stock to be sold by the Company, when both: (a) the Board of Directors of the Company
or a duly constituted and acting committee thereof (such Board of Directors or committee being hereinafter referred to as the “Board”)
has taken all necessary corporate action to approve the issuance and the terms of the offering of the shares of Common Stock and
related matters; and (b) the shares of Common Stock have been delivered either (i) in accordance with the applicable definitive
purchase, underwriting, subscription or similar agreement approved by the Board, or upon the exercise of Warrants to purchase Common
Stock, upon payment of the consideration therefor (not less than the par value of the Common Stock) provided for therein or (ii)
upon conversion or exercise of any other Security, in accordance with the terms of such Security or the instrument governing such
Security providing for such conversion or exercise as approved by the Board, for the consideration approved by the Board, then
the shares of Common Stock will be validly issued, fully paid and nonassessable;
2. With respect to any particular series of shares of Preferred Stock, when both: (a) the Board has taken all necessary
corporate action to approve the issuance and terms of the shares of Preferred Stock, the terms of the offering thereof, and related
matters, including the adoption of a certificate of designation relating to such Preferred Stock conforming to the General Corporation
Law of the State of Delaware (a “Certificate”) and the filing of the Certificate with the Secretary of State of the
State of Delaware; and (b) the shares of Preferred Stock have been delivered either (i) in accordance with the applicable definitive
purchase, underwriting, subscription or similar agreement approved by the Board, or upon the exercise of Warrants to purchase Preferred
Stock, upon payment of the consideration therefor (not less than the par value of the Preferred Stock) provided for therein or
upon conversion or exercise of such Security or the instrument governing such Security providing for such conversion or exercise
as approved by the Board, for the consideration approved by the Board, then the shares of Preferred Stock will be validly issued,
fully paid and nonassessable;
3. With respect to Debt Securities to be issued under the Indenture, when: (a) the Trustee is qualified to act as Trustee under
the Indenture, and the Company has filed respective Forms T-1 for the Trustee with the Commission; (b) the Trustee has duly executed
and delivered the Indenture; (c) the Indenture has been duly authorized and validly executed and delivered by the Company to the
Trustee; (d) the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended; (e) the Board has taken all
necessary corporate action to approve the issuance and terms of such Debt Securities, the terms of the offering thereof and related
matters; and (f) such Debt Securities have been duly executed, authenticated, issued and delivered in accordance with the provisions
of the Indenture and the applicable definitive purchase, underwriting, subscription or similar agreement approved by the Board,
or upon the exercise of Warrants to purchase Debt Securities, upon payment of the consideration therefor provided for therein,
such Debt Securities will be validly issued and will constitute valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, and entitled to the benefits of the Indenture;
4. With respect to Depositary Shares, when: (a) the Board has taken all necessary corporate action to approve the issuance
and terms of the Depositary Shares, the terms of the offering thereof, and related matters, including the adoption of a Certificate
relating to the Preferred Stock underlying such Depositary Shares and the filing of the Certificate with the Secretary of State
of the State of Delaware; (b) the Deposit Agreement (the “Deposit Agreement”) or agreements relating to the Depositary
Shares and the related Depositary Receipts (the “Depositary Receipts”) have been duly authorized and validly executed
and delivered by the Company and the depositary appointed by the Company; (c) the shares of Preferred Stock underlying such Depositary
Shares have been deposited with a bank or trust company (which meets the requirements for the depositary set forth in the Registration
Statement) under the applicable Deposit Agreement; and (d) the Depositary Receipts representing the Depositary Shares have been
duly executed, countersigned, registered and delivered in accordance with the appropriate Deposit Agreement and the applicable
definitive purchase, underwriting, subscription or similar agreement approved by the Board upon payment of the consideration therefor
provided for therein, the Depositary Shares will be validly issued, fully paid and nonassessable, and entitled to the rights specified
in the Deposit Agreement;
5. With respect to the Warrants, when both: (a) the Board has taken all necessary corporate action to approve the issuance
and terms of the Warrants and related matters; and (b) the Warrants have been duly executed and delivered against payment therefor,
pursuant to the applicable definitive purchase, underwriting, subscription, warrant or similar agreement duly authorized, executed
and delivered by the Company and a warrant agent, as applicable, and the certificates for the Warrants have been duly executed
and delivered by the Company and such warrant agent, then the Warrants will be validly issued and will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with their terms;
6. With respect to the Subscription Rights, when both: (a) the Board has taken all necessary corporate action to authorize
the issuance and terms of the Subscription Rights, the terms of the offering thereof, and related matters and (b) the rights agreement
under which the Subscription Rights are to be issued has been duly authorized and validly executed and delivered by the Company,
then the Subscription Rights will be valid and binding obligations of the Company, enforceable against the Company in accordance
with their terms;
7. With respect to the Units, when both: (a) the Board has taken all necessary corporate action to approve the issuance and
terms of the Units (including any Securities underlying the Units) and related matters; and (b) the Units (including any Securities
underlying the Units) have been duly executed and delivered against payment therefor, pursuant to the applicable definitive purchase,
underwriting, or similar agreement duly authorized, executed and delivered by the Company and any applicable unit or other agents,
and the certificates for the Units (including any Securities underlying the Units) have been duly executed and delivered by the
Company and any applicable unit or other agents, then the Units will be validly issued and will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms.
8. The Shares are validly issued, fully paid and nonassessable.
Our opinion that any
document is legal, valid and binding is qualified as to: (a) limitations imposed by bankruptcy, insolvency, reorganization, arrangement,
fraudulent conveyance, moratorium or other laws relating to or affecting the rights of creditors generally; (b) rights to indemnification
and contribution, which may be limited by applicable law or equitable principles; and (c) general principles of equity, including
without limitation concepts of materiality, reasonableness, good faith and fair dealing, and the possible unavailability of specific
performance or injunctive relief and limitation of rights of acceleration, regardless of whether such enforceability is considered
in a proceeding in equity or at law.
We express no opinion
as to the laws of any other jurisdiction, other than the federal laws of the United States of America, the State of New York as
to the enforceability of the Debt Securities and the General Corporation Law of the State of Delaware. We do not express any opinion
as to the effect on the matters covered by this letter of the laws of any other jurisdiction. The opinion expressed above is as
of the date hereof only, and we express no opinion as to, and assume no responsibility for, the effect of any fact or circumstance
occurring, or of which we learn, subsequent to the date of this opinion letter, including, without limitation, legislative and
other changes in the law or changes in circumstances affecting any party. We assume no responsibility to update this opinion letter
for, or to advise you of, any such facts or circumstances of which we become aware, regardless of whether or not they affect the
opinion expressed in this opinion letter.
We hereby consent to
the filing of this letter as Exhibit 5.1 to the Registration Statement. In giving such consent, we do not hereby admit that we
are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission.
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Very truly yours,
/s/ Baker & Hostetler
LLP
BAKER & HOSTETLER
LLP
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Summit Therapeutics Inc. S-3
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 Summit Therapeutics Inc. of our report dated February 20, 2024 relating to the financial
statements, which appears in Summit Therapeutics Inc.’s Annual Report on Form 10-K for the year ended December 31, 2023.
We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
Boston, Massachusetts
February 20, 2024
Summit Therapeutics Inc. S-3
Exhibit 107
Calculation of Filing Fee Tables
Form S-3
(Form Type)
Summit Therapeutics Inc.
(Exact Name of Registrant as Specified in
its Charter)
Table 1: Newly Registered Securities
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Security
Type |
Security
Class
Title |
Fee
Calculation
or Carry
Forward
Rule |
Amount
Registered (1) |
Proposed
Maximum
Offering
Price Per
Unit (2) |
Maximum
Aggregate
Offering Price (3) |
Fee
Rate |
Amount
of
Registration
Fee |
Equity |
Common
Stock, par value $0.0001 per share |
457(o) |
—
|
$—
|
$— |
0.00014760 |
$— |
Equity |
Preferred
Stock, par value $0.0001 per share |
457(o) |
—
|
$—
|
$—
|
0.00014760 |
$—
|
Debt |
Debt
Securities |
457(o) |
—
|
$—
|
$—
|
0.00014760 |
$—
|
Equity |
Depositary
Shares |
457(o) |
—
|
$—
|
$—
|
0.00014760 |
$—
|
Other |
Warrants |
457(o) |
—
|
$—
|
$—
|
0.00014760 |
$—
|
Other |
Subscription
Rights |
457(o) |
—
|
$—
|
$—
|
0.00014760 |
$—
|
Other |
Purchase
Contracts |
457(o) |
—
|
$—
|
$—
|
0.00014760 |
$—
|
Other |
Units |
457(o) |
—
|
$—
|
$—
|
0.00014760 |
$—
|
Unallocated
(Universal Shelf) |
—
|
457(o) |
—
|
$—
|
$450,000,000 |
0.00014760 |
$66,420.00 |
Equity |
Common
Stock, par value $0.0001 per share |
457(c) |
2,976,190
|
$4.435(4) |
$13,199,402.65 |
0.00014760 |
$1,948.23 |
|
Total
Offering Amounts |
$463,199,402.65 |
0.00014760 |
$68,368.23 |
|
Total
Fees Previously Paid |
— |
|
—
|
|
Total
Fee Offsets |
— |
|
—
|
|
Net
Fee Due |
|
|
$68,368.23 |
(1) |
The securities registered hereunder include such indeterminate number of (a) shares of common stock, (b) shares of preferred stock, (c) debt securities, (d) depositary shares, (e) warrants to purchase common stock, preferred stock, debt securities or depositary shares of the registrant, (f) subscription rights to purchase common stock, preferred stock, debt securities, depositary shares, warrants or units consisting of some or all of these securities of the registrant, (g) purchase contracts, and (h) units consisting of some or all of these securities, as may be sold from time to time by the registrant. There are also being registered hereunder an indeterminate number of shares of common stock and preferred stock as shall be issuable upon conversion, exchange or exercise of any securities that provide for such issuance. |
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(2) |
The proposed maximum offering price per security and proposed maximum aggregate offering price per class of security will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered hereunder and is not specified as to each class of security pursuant to General Instruction II.D. of Form S-3 under the Securities Act. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities, or that are issued in units. |
(3) |
Estimated solely for the purpose of calculating the registration fee. Subject to Rule 462(b) under the Securities Act, the aggregate initial offering price of all securities issued by the registrant pursuant to this registration statement will not exceed $450,000,000. |
(4) |
Estimated pursuant to Rule 457(c) under the Securities Act of 1933, as amended, solely for purposes of calculating the amount of the registration fee, based on the average of the high and low prices as reported on the Nasdaq Global Market on February 13, 2024. |
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