As filed with the Securities and Exchange Commission
on September 9, 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
Tigo Energy,
Inc.
(Exact name of registrant as specified in its charter)
Delaware |
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83-3583873 |
(State or other jurisdiction of
incorporation or organization) |
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(I.R.S. Employer
Identification Number) |
655 Campbell Technology Parkway, Suite 150
Campbell, California 95008
(408) 402-0802
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Bill Roeschlein
Chief Financial Officer
655 Campbell Technology Parkway, Suite 150
Campbell, California 95008
(408) 402-0802
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Joel Rubinstein
White & Case LLP
1221 Avenue of the Americas
New York, New York 10020
Telephone: (212) 819-8200 |
|
Laura Katherine Mann
White & Case LLP
609 Main Street
Houston, Texas 77002
Telephone: (713) 496-9700 |
Approximate date of commencement of proposed
sale to the public:
From time to time after this registration statement
becomes effective.
If the only securities being registered on this
Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this
Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, 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 on 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, 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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☐ |
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Non-accelerated filer: |
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☒ |
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Smaller reporting company: |
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☒ |
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Emerging growth company: |
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☒ |
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ☐
The registrant hereby amends this registration
statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which
specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities
Act of 1933 or until this registration statement shall become effective on such date as the SEC, acting pursuant to said Section 8(a),
may determine.
The information in
this prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer to sell nor does it seek an offer to buy these securities
in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION,
DATED SEPTEMBER 9, 2024
PROSPECTUS
Tigo Energy, Inc.
$100,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Rights
Units
This prospectus relates to the offer and sale
by Tigo Energy, Inc., a Delaware corporation (the “Company,” “we,” “us” or “Tigo”) from
time to time in one or more offerings of up to $100,000,000 in the aggregate of the Company’s common stock, par value $ 0.0001 per
share (the “Common Stock”), preferred stock, debt securities, warrants, rights or units.
This prospectus provides you with a general description
of such securities and the general manner in which we may offer or sell the securities. More specific terms of any securities that we
may offer or sell may be provided in a prospectus supplement that describes, among other things, the specific amounts and prices of the
securities being offered and the terms of the offering. The prospectus supplement may also add, update or change information contained
in this prospectus.
We may offer and sell the securities described
in this prospectus and any prospectus supplement to or through one or more underwriters, dealers and agents, or directly to purchasers,
or through a combination of these methods. If any underwriters, dealers or agents are involved in the sale of any of the securities, their
names and any applicable purchase price, fee, commission or discount arrangement between or among them will be set forth, or will be calculable
from the information set forth, in the applicable prospectus supplement. See the sections of this prospectus entitled “About this
Prospectus” and “Plan of Distribution” for more information. No securities may be sold without delivery of this prospectus
and the applicable prospectus supplement describing the method and terms of the offering of such securities. You should read this prospectus
and any prospectus supplement or amendment carefully before you invest in our securities.
Our
shares of Common Stock are listed on the Nasdaq Stock Market (“Nasdaq”) under the symbol “TYGO.” On September
6, 2024, the closing sale price of shares of our Common Stock was $1.115.
As
of September 3, 2024, the aggregate market value of our outstanding common stock held by non-affiliates was approximately $43,796,536,
which was calculated based on 25,170,423 shares of outstanding common stock held by non-affiliates, at a price per share of $1.74, the
closing price of our Common Stock on July 29, 2024, the highest closing price of the Company’s Common Stock on Nasdaq during the
preceding 60 day trading period. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell the securities described
in this prospectus in a public primary offering with a value exceeding more than one-third (1/3) of the aggregate market value of our
common stock held by non-affiliates in any 12-month period, so long as the aggregate market value of our outstanding Common Stock held
by non-affiliates remains below $75,000,000. During the 12 calendar months prior to and including the date of this prospectus, we have
offered a total of $73,078 worth of securities pursuant to General Instruction I.B.6 of Form S-3.
Investing in our
securities involves risks that are described in the “Risk Factors” section beginning on page 2 of this prospectus and
similar sections contained in the documents incorporated by reference into this prospectus.
Neither the Securities and Exchange
Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is
truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is September 9,
2024.
TABLE OF CONTENTS
You should rely only on the information contained
in this prospectus. No one has been authorized to provide you with information that is different from that contained in this prospectus.
This prospectus is dated as of the date set forth on the cover hereof. You should not assume that the information contained in this prospectus
is accurate as of any date other than that date.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement
on Form S-3 that we filed with the Securities and Exchange Commission (the “SEC”) using a “shelf” registration
process. By using a shelf registration statement, we may sell securities from time to time
and in one or more offerings up to a total dollar amount of $100,000,000 as described in this prospectus.
Each time
that we offer and sell securities, we will provide a prospectus supplement to this prospectus that contains specific information about
the securities being offered and sold and the specific terms of that offering. We may also authorize one or more free writing prospectuses
to be provided to you that may contain material information relating to these offerings. The prospectus supplement or free writing prospectus
may also add, update or change information contained in this prospectus with respect to that offering. Any statement contained
in this prospectus will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained
in such prospectus supplement or free writing prospectus modifies or supersedes such statement. Any statement so modified will be deemed
to constitute a part of this prospectus only as so modified, and any statement so superseded will be deemed not to constitute a part of
this prospectus. If there is any inconsistency between the information in this prospectus and the
applicable prospectus supplement or free writing prospectus, you should rely on the prospectus supplement or free writing prospectus,
as applicable. You should rely only on the information contained in this prospectus, any applicable prospectus supplement or any
related free writing prospectus. See “Where You Can Find More Information.”
We have not authorized anyone to provide any information
or to make any representations other than those contained in this prospectus, any accompanying prospectus supplement or any free writing
prospectus we have prepared. We take no responsibility for, and can provide no assurance as to the reliability of, any other information
that others may give you. This prospectus is an offer to sell only the securities offered hereby and only under circumstances and in jurisdictions
where it is lawful to do so. No dealer, salesperson or other person is authorized to give any information or to represent anything not
contained in this prospectus, any applicable prospectus supplement or any related free writing prospectus. This prospectus is not an offer
to sell securities, and it is not soliciting an offer to buy securities, in any jurisdiction where the offer or sale is not permitted.
You should assume that the information appearing in this prospectus or any prospectus supplement is accurate only as of the date on the
front of those documents only, regardless of the time of delivery of this prospectus or any applicable prospectus supplement, or any sale
of a security. Our business, financial condition, results of operations and prospects may have changed since those dates.
This prospectus
incorporates by reference, and any prospectus supplement or free writing prospectus may contain and incorporate by reference, market data
and industry statistics and forecasts that are based on independent industry publications and other publicly available information. Although
we believe these sources are reliable, we do not guarantee the accuracy or completeness of this information and we have not independently
verified this information. In addition, the market and industry data and forecasts that may be included or incorporated by reference in
this prospectus, any prospectus supplement or any applicable free writing prospectus may involve estimates, assumptions and other risks
and uncertainties and are subject to change based on various factors, including those discussed under the heading “Risk Factors”
contained in this prospectus, the applicable prospectus supplement and any applicable free writing prospectus, and under similar headings
in other documents that are incorporated by reference.
This prospectus contains summaries of certain provisions contained
in some of the documents described herein, but reference is made to the actual documents for complete information. All of the summaries
are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed
or will be incorporated by reference as exhibits to the registration statement of which this prospectus is a part. Before making an investment
decision, you should read, in addition to this prospectus and the registration statement, any documents that we incorporate by reference
in this prospectus, as referred to under “Where You Can Find More Information,” and you may obtain copies of those documents
as described below.
As used in this prospectus,
unless otherwise indicated or the context otherwise requires, references to “we,” “us,” “our,” the
“Company,” “Registrant,” and “Tigo” refer to the consolidated operations of Tigo Energy, Inc. (formerly
known as Roth CH Acquisition IV Co.) and its subsidiaries. References to “ROCG” refer to the Company prior to the consummation
of the Business Combination (as defined below) and references to “Legacy Tigo” refer to Tigo Energy, Inc. prior to the consummation
of the Business Combination.
ROCG was originally formed
as a Delaware corporation in February of 2019 for the purpose of effecting a merger, share exchange, asset acquisition, share purchase,
recapitalization, reorganization, or other similar business combination with one or more businesses. On August 10, 2021, ROCG consummated
its initial public offering, following which its securities began trading on the Nasdaq Capital Market .
On December 5, 2022,
ROCG, Roth IV Merger Sub Inc., a Delaware corporation and a wholly-owned subsidiary of ROCG (“Merger Sub”), and Legacy Tigo,
entered into an Agreement and Plan of Merger, as amended on April 6, 2023 (the “Merger Agreement”), pursuant to which, among
other transactions, on May 23, 2023 (the “Closing Date”), Merger Sub merged with and into Legacy Tigo (the “Merger”),
with Legacy Tigo surviving the Merger as a wholly-owned subsidiary of ROCG (the Merger, together with the other transactions described
in the Merger Agreement, the “Business Combination”). In connection with the closing of the Business Combination, ROCG changed
its name to “Tigo Energy, Inc.”
TRADEMARKS
We and our subsidiaries own or have rights to
trademarks, trade names and service marks that they use in connection with the operation of their business. In addition, their names,
logos and website names and addresses are their trademarks or service marks. Other trademarks, trade names and service marks appearing
in this prospectus, are the property of their respective owners. Solely for convenience, in some cases, the trademarks, trade names and
service marks referred to in this prospectus are listed without the applicable ®, M and SM symbols,
but their respective owners will assert, to the fullest extent under applicable law, their rights to these trademarks, trade names and
service marks.
CAUTIONARY NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus, including
the documents incorporated herein by reference, contains statements that are “forward-looking looking statements” within the
meaning of the Private Securities Litigation Reform Act of 1995. These forward-looking statements include, without limitation, statements
regarding the financial position, business strategy and the plans and objectives of management for future operations. These statements
constitute projections, forecasts and forward-looking statements, and are not guarantees of performance. Such statements can be identified
by the fact that they do not relate strictly to historical or current facts. When used in this prospectus and/or the documents incorporated
herein by reference, words such as “anticipate,” “believe,” “continue,” “could,” “estimate,”
“expect,” “intend,” “may,” “might,” “plan,” “possible,” “potential,”
“predict,” “project,” “should,” “strive,” “would” and similar expressions
may identify forward-looking statements, but the absence of these words does not mean that a statement is not forward-looking. When the
Company discusses its strategies or plans, the Company is making projections, forecasts or forward-looking statements. Such statements
are based on the beliefs of, as well as assumptions made by and information currently available to, the Company’s management.
You should not place
undue reliance on these forward-looking statements. The forward-looking statements contained in this prospectus are only predictions based
on the Company’s current expectations and projections about future events and are subject to a number of risks, uncertainties and
assumptions that may cause actual results or performance to be materially different from those expressed or implied by these forward-looking
statements. These risks include, but are not limited to, those described in our filings made with the SEC from time to time incorporated
by reference herein.
It is not possible for
the management of the Company to predict all risks, nor can the Company assess the impact of all factors on the Company’s business
or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any
forward-looking statements the Company may make. In light of these risks, uncertainties and assumptions, the forward-looking events and
circumstances discussed in this prospectus may not occur, and actual results could differ materially and adversely from those anticipated
or implied in the forward-looking statements in this prospectus.
The forward-looking statements
included in this prospectus are made only as of the date hereof. You should not rely upon forward-looking statements as predictions of
future events. Although the Company believes that the expectations reflected in its forward-looking statements are reasonable, the Company
cannot guarantee that the future results, levels of activity, performance or events and circumstances reflected in the forward-looking
statements will be achieved or occur. The Company does not undertake any obligation to update publicly any forward-looking statements
for any reason after the date of this prospectus to conform these statements to actual results or to changes in expectations, except as
required by law. You should read this prospectus and the documents that have been filed as exhibits hereto with the understanding that
the actual future results, levels of activity, performance, events and circumstances of the Company may be materially different from what
is expected.
SUMMARY OF THE PROSPECTUS
This summary highlights selected information appearing
elsewhere in this prospectus or the documents incorporated by reference herein. Because it is a summary, it may not contain all of the
information that may be important to you in making an investment decision. Before investing in our securities, you should carefully read
this entire prospectus, the registration statement of which this prospectus is a part and the documents incorporated by reference herein
carefully, including the information set forth under the heading “Risk Factors” and our financial statements. See the section
of this prospectus titled “Where You Can Find More Information.”
Overview
Our mission is to deliver smart system solutions,
combining hardware and software, which enhance safety, increase energy yield, and lower operating costs of residential, commercial, and
utility-scale solar systems. We believe we are a worldwide leader in the development and delivery of products and solutions that are flexible
and dependable, increasing the energy generation of solar energy systems.
We have served the solar energy industry with
advanced power electronics, including the manufacturing and development of our Module Level Power Electronics (“MLPEs”), since
our inception in 2007. Until 2021, we primarily focused on our MLPEs, which are devices that reside under the solar panel and improve
safety features and energy production for the installer and system owner. Our MLPEs are designed to be highly flexible solutions that
work with other inverters and modules, providing the installer with an open system solution and a variety of choices when designing a
system for the consumer.
Although the solar optimizer and inverter space
has been historically served by two major suppliers, we expect to attract new customers and gain market share by expanding sales of our
MLPEs, which provide solar panel power optimization and rapid shutdown, our GO Energy Storage Systems (“GO ESS”), (formerly
referred to as the Tigo EI Solution), which provides solar energy storage management capabilities, and our Energy Intelligence (“EI”)
platform which provides monitoring and energy demand forecasting capabilities. We began to offer our GO ESS to residential customers in
the United States (“U.S.”) and Europe in late 2021 and 2022, respectively, and added our energy demand forecasting software
capabilities through our acquisition of Foresight Energy, Ltd. in the first quarter of 2023. Our products power everything from single-digit
kilowatt residential systems to commercial, industrial, and utility systems, scaling to hundreds of megawatts on rooftop, ground-mounted,
and floating applications.
Corporate Information
We were incorporated in Delaware on February 13,
2019, under the name Roth CH Acquisition IV Co., in order to effectuate a merger, capital stock exchange, asset acquisition, stock
purchase, reorganization or similar business combination with one or more businesses. ROCG completed its initial public offering on August 10,
2021. On May 23, 2023, ROCG and Legacy Tigo consummated the transactions contemplated by the Merger Agreement. On the Closing Date,
ROCG changed its name to Tigo Energy, Inc.
The mailing address of our principal executive
office is 655 Campbell Technology Parkway, Suite 150, Campbell, California 95008, and our telephone number is (408) 402-0802. Our
website is https://www.tigoenergy.com/. Information contained on our website is not a part of this prospectus, and the inclusion of our
website address in this prospectus is an inactive textual reference only.
RISK FACTORS
An investment in any securities offered pursuant
to this prospectus and the applicable prospectus supplement involves risks. Before deciding whether to invest in our securities, you should
carefully consider the risk factors incorporated by reference to our most recent Annual Report on Form 10-K, any subsequent Quarterly
Reports on Form 10-Q or Current Reports on Form 8-K and all other information contained or incorporated by reference into this prospectus,
as updated by our subsequent filings under the Exchange Act, and the risk factors and other information contained in any applicable prospectus
supplement. For more information, see “Where You Can Find More Information.”
USE OF PROCEEDS
Except as otherwise may be described in an applicable
prospectus supplement, we intend to use the net proceeds from the sale of the securities offered by us hereunder for general corporate
purposes. We may also use such proceeds for temporary investments until we need them for general corporate purposes.
DESCRIPTION OF COMMON STOCK AND PREFERRED STOCK
A description of our Common Stock and preferred
stock is set forth in our registration statement on Form 8-A as originally filed with the SEC on August 4, 2021 and any amendment or report
filed for the purpose of updating this information (including Exhibit 4.2 to our Annual Report on Form 10-K for the fiscal year ended
December 31, 2023), which description is incorporated herein by reference.
DESCRIPTION OF DEBT SECURITIES
The following description, together with the additional
information we include in any applicable prospectus supplement or free writing prospectus, 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 also 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. 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.
The debt securities will be issued under an indenture
between us and a trustee named in a 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 and you should read the indenture for provisions
that may be important to you. In the summary below, we have included references to the section numbers of the indenture so that you can
easily locate these provisions. 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).
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 on 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 in 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 U.S. 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, premium and interest on the debt securities will be made; |
| ● | if payments of principal of, premium or interest on the debt
securities will be made in one or more currencies or currency units other than that or 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,
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; |
| ● | the provisions, if any, relating to conversion or exchange
of any debt securities of such series, including if applicable, the conversion or exchange price and period, provisions as to whether
conversion or exchange will be mandatory, the events requiring an adjustment of the conversion or exchange price and provisions affecting
conversion or exchange; |
| ● | 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.
Form, Transfer and Exchange
Each debt security will be represented by either
one or more global securities registered in the name of The Depository Trust Company (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.
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. Unless and until it is exchanged for individual certificates evidencing
securities under the limited circumstances described in the indenture, a global debt security may not be transferred except as a whole
by the depositary to its nominee or by the nominee to the depositary, or by the depositary or its nominee to a successor depositary or
to a nominee of the successor depositary.
Depositary holds securities that its participants
deposit with Depositary. Depositary also facilitates the settlement among its participants of securities transactions, such as transfers
and pledges, in deposited securities through electronic computerized book-entry changes in participants’ accounts, thereby eliminating
the need for physical movement of securities certificates. “Direct participants” in Depositary include securities brokers
and dealers, including underwriters, banks, trust companies, clearing corporations and other organizations. Access to the Depositary system
is also available to others (which we sometimes refer to as indirect participants) that clear through or maintain a custodial relationship
with a direct participant, either directly or indirectly. The rules applicable to Depositary and its participants are on file with the
SEC.
So long as the debt securities are in book-entry
form, you will receive payments and may transfer debt securities only through the facilities of the Depositary and its direct and indirect
participants. We will maintain an office or agency in the location specified in the prospectus supplement for the applicable securities,
where notices and demands in respect of the securities and the indenture may be delivered to us and where certificated debt securities
may be surrendered for payment, registration of transfer or exchange. We will make payments on book-entry debt securities to the Depositary
or its nominee, as the registered owner of such securities, by wire transfer of immediately available funds.
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, 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.
If the debt securities are issued in definitive
certificated form under the limited circumstances described in the indenture, we will have the option of making payments by check mailed
to the addresses of the persons entitled to payment or by wire transfer to bank accounts in the United States designated in writing to
the applicable trustee or other designated party at least 15 days before the applicable payment date by the persons entitled to payment,
unless a shorter period is satisfactory to the applicable trustee or other designated party.
Covenants
We will set forth in the applicable prospectus
supplement any restrictive covenants applicable to any issue of debt securities, including the payment of principal, premium, if any,
and interest on such debt securities. The indenture will not limit us from incurring or issuing other unsecured or secured debt and, unless
otherwise indicated in the applicable prospectus supplement, the indenture will not contain any financial covenants.
No Protection in the Event of a Change of Control
Unless we state otherwise in the applicable prospectus
supplement, the debt securities will not contain any provisions which may afford holders of the debt securities protection in the event
we have a change in control or in the event of a highly leveraged transaction (whether or not such transaction results in a change in
control) which could adversely affect holders of debt securities.
Conversion or Exchange Rights
We will set forth in the applicable prospectus
supplement or free writing prospectus the terms on which a series of debt securities may be convertible into or exchangeable for our common
stock, our preferred stock or other securities (including securities of a third-party). We will include provisions as to whether conversion
or exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of shares
of our common stock, our preferred stock or other securities (including securities of a third-party) that the holders of the series of
debt securities receive would be subject to adjustment.
Consolidation, Merger 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 (a “successor person”) unless:
| ● | we are the surviving corporation or the successor person
(if other than Tigo) 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
(as defined below) 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 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 Tigo and the trustee receives 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 Tigo; |
| ● | any other Event of Default provided with respect to debt
securities of that series that is described in the applicable prospectus supplement |
“Default” means any event which is, or after notice
or passage of time or both would be, an Event of Default.
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 will provide 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, 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 will require 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
mail to each holder 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 will provide 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; or |
| ● | to comply with requirements of the SEC in order to effect
or maintain the qualification of the indenture under the Trust Indenture Act of 1939, as amended. |
We may also modify and amend the indenture with
the consent of the holders of a majority in principal amount of the outstanding debt securities of each series affected by the modifications
or amendments (with the securities of each series voting as a class). 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, premium
or interest on any debt security (except a rescission of acceleration of the debt securities of any series by the holders of 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, premium and interest on those
debt securities and to institute suit for the enforcement of any such payment and to waivers or amendments; or |
| ● | waive a redemption payment with respect to any debt security. |
Except for certain specified provisions, the holders
of 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 will provide
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) 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 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 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 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.
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
will provide 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 (“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; and |
| ● | delivering to the trustee an opinion of counsel to the effect 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 such 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 such covenant defeasance had not occurred. |
In the event covenant defeasance occurs, certain
events (not including non-payment, bankruptcy, receivership, rehabilitation and insolvency events) described under “Events of Default”
will no longer constitute an Event of Default with respect to the applicable series of debt securities.
No Personal Liability of Directors, Officers, Employees or Securityholders
None of our past, present or future directors,
officers, employees or securityholders, 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 further 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 further 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 WARRANTS
We may elect to offer warrants from time to time
in one or more series. The following description summarizes the general terms and provisions of the warrants we may offer pursuant to
this prospectus that are common to all series.
The specific terms relating to any series of our
warrants that we offer will be described in a prospectus supplement, which you should read. Because the terms of specific series of warrants
offered may differ from the general information that we have provided below, you should rely on information in the applicable prospectus
supplement that contradicts any information below. The summary below is not complete and is subject to, and qualified in its entirety
by reference to, the terms and provisions of the applicable warrant agreement relating to each series of warrants, which will be in the
form filed as an exhibit to or incorporated by reference in the registration statement of which this prospectus is a part at or prior
to the time of the issuance of such series of warrants.
General
We may issue warrants to purchase common stock,
preferred stock, debt securities or any combination thereof (including in the form of units), which we refer to in this prospectus, collectively,
as the “underlying warrant securities.” The warrants may be issued independently or together with any series of underlying
warrant securities and may be attached or separate from the underlying warrant securities. Each series of warrants will be issued pursuant
to a separate form of warrant and may be issued pursuant to a separate warrant agreement to be entered into between us and a warrant agent.
Any warrant agent will act solely as our agent in connection with the warrants of such series and will not assume any obligation or relationship
of agency for or with holders or beneficial owners of warrants.
The applicable prospectus supplement will describe
the terms of any series of warrants in respect of which this prospectus is being delivered, including the following:
| ● | the title of the warrants; |
| ● | the aggregate number of warrants; |
| ● | the price or prices at which the warrants will be issued; |
| ● | the currency or currencies in which the price of the warrants may be payable; |
| ● | the designation and terms of the underlying warrant securities purchasable upon exercise of the warrants
and the number of such underlying warrant securities issuable upon exercise of the warrants; |
| ● | the price at which and the currency or currencies, including composite currencies, in which the underlying
warrant securities purchasable upon exercise of the warrants may be purchased; |
| ● | the date on which the right to exercise the warrants will commence and the date on which that right will
expire (subject to any extension); |
| ● | whether the warrants will be issued in registered form or bearer form; |
| ● | if applicable, the minimum or maximum amount of the warrants which may be exercised at any one time; |
| ● | if applicable, the designation and terms of the underlying warrant securities with which the warrants
are issued and the number of the warrants issued with each underlying warrant security; |
| ● | if applicable, the date on and after which the warrants and the related underlying warrant securities
will be separately transferable; |
| ● | information with respect to book-entry procedures, if any; |
| ● | if applicable, a discussion of the material United States federal income tax considerations applicable
to the issuance or exercise of the warrants; and |
| ● | any other terms of the warrants, including terms, procedures and limitations relating to the exchange
and exercise of the warrants. |
Amendments and Supplements to Warrant Agreement
The warrant agreement for a series of warrants,
if applicable, may be amended or supplemented without the consent of the holders of the warrants issued thereunder to effect changes that
are not inconsistent with the provisions of the warrants and that do not adversely affect the interests of the holders of the warrants.
DESCRIPTION OF RIGHTS
This section describes the general terms of the
rights that we may offer and sell by this prospectus. This prospectus and any accompanying prospectus supplement will contain the material
terms and conditions for each right. The accompanying prospectus supplement may add, update or change the terms and conditions of the
rights as described in this prospectus.
The particular terms of each issue of rights,
the rights agreement relating to the rights and the rights certificates representing rights will be described in the applicable prospectus
supplement, including, as applicable:
| ● | the title of the rights; |
| ● | the date of determining the c entitled to the rights distribution; |
| ● | the title, aggregate number of shares of common stock or preferred stock purchasable upon exercise of
the rights; |
| ● | the aggregate number of rights issued; |
| ● | the date, if any, on and after which the rights will be separately transferable; |
| ● | the date on which the right to exercise the rights will commence and the date on which the right will
expire; and |
| ● | any other terms of the rights, including terms, procedures and limitations relating to the distribution,
exchange and exercise of the rights. |
Each right will entitle the holder of rights to
purchase for cash the principal amount of shares of common stock or preferred stock at the exercise price provided in the applicable prospectus
supplement. Rights may be exercised at any time up to the close of business on the expiration date for the rights provided in the applicable
prospectus supplement. After the close of business on the expiration date, all unexercised rights will be void.
Holders may exercise rights as described in the
applicable prospectus supplement. Upon receipt of payment and the rights certificate properly completed and duly executed at the corporate
trust office of the rights agent or any other office indicated in the prospectus supplement, we will, as soon as practicable, forward
the shares of common stock or preferred stock purchasable upon exercise of the rights. If less than all of the rights issued in any rights
offering are exercised, we may offer any unsubscribed securities directly to persons other than securityholders, to or through agents,
underwriters or dealers or through a combination of such methods, including pursuant to standby underwriting arrangements, as described
in the applicable prospectus supplement.
DESCRIPTION OF UNITS
The following description, together with the additional
information we include in any applicable prospectus supplements, summarizes the material terms and provisions of the units that we may
offer under this prospectus. Units may be offered independently or together with common stock, preferred stock, debt securities, and warrants
offered by any prospectus supplement, and may be attached to or separate from those securities. While the terms we have summarized below
will generally apply to any future units that we may offer under this prospectus, we will describe the particular terms of any series
of units that we may offer in more detail in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement
may differ from the terms described below.
We will incorporate by reference into the registration
statement, of which this prospectus is a part, the form of unit agreement, including a form of unit certificate, if any, that describes
the terms of the series of units we are offering before the issuance of the related series of units. The following summaries of material
provisions of the units and the unit agreements are subject to, and qualified in their entirety by reference to, all the provisions of
the unit agreement applicable to a particular series of units. We urge you to read the applicable prospectus supplements related to the
units that we sell under this prospectus, as well as the complete unit agreements that contain the terms of the units.
General
We may issue units consisting of common stock,
preferred stock, debt securities, and/or warrants in any combination. Each unit will be issued so that the holder of the unit is also
the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each
included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held
or transferred separately, at any time, or at any time before a specified date.
We will describe in the applicable prospectus
supplement the terms of the series of units, including the following:
| ● | the designation and terms of the units and of the securities comprising the units, including whether and
under what circumstances those securities may be held or transferred separately; |
| ● | any provisions of the governing unit agreement that differ from those described below; and |
| ● | any provisions for the issuance, payment, settlement, transfer, or exchange of the units or of the securities
comprising the units |
The provisions described in this section, as well
as those described in the sections entitled “Description of Common Stock and Preferred Stock,” “Description of Debt
Securities,” and “Description of Warrants,” will apply to each unit and to any common stock, preferred stock, debt security,
or warrant included in each unit, respectively.
Issuance in Series
We may issue units in such amounts and in such
numerous distinct series as we determine.
Enforceability of Rights by Holders of Units
Each unit agent will act solely as our agent under
the applicable unit agreement and will not assume any obligation or relationship of agency or trust with any holder of any unit. A single
bank or trust company may act as unit agent for more than one series of units. A unit agent will have no duty or responsibility in case
of any default by us under the applicable unit agreement or unit, including any duty or responsibility to initiate any proceedings at
law or otherwise, or to make any demand upon us. Any holder of a unit may, without the consent of the related unit agent or the holder
of any other unit, enforce by appropriate legal action its rights as holder under any security included in the unit.
Title
We, the unit agent, and any of their agents may
treat the registered holder of any unit certificate as an absolute owner of the units evidenced by that certificate for any purposes and
as the person entitled to exercise the rights attaching to the units so requested, despite any notice to the contrary.
GLOBAL SECURITIES
Book-Entry, Delivery and Form
Unless we indicate differently in a prospectus
supplement, the securities initially will be issued in book-entry form and represented by one or more global securities. The global securities
will be deposited with, or on behalf of, The Depository Trust Company, New York, New York, as depositary, or DTC, and registered in the
name of Cede & Co., the nominee of DTC. Unless and until it is exchanged for individual certificates evidencing securities under the
limited circumstances described below, a global security may not be transferred except as a whole by the depositary to its nominee or
by the nominee to the depositary, or by the depositary or its nominee to a successor depositary or to a nominee of the successor depositary.
DTC has advised us that it is:
| ● | a limited-purpose trust company organized under the New York Banking Law; |
| ● | a “banking organization” within the meaning of the New York Banking Law; |
| ● | a member of the Federal Reserve System; |
| ● | a “clearing corporation” within the meaning of the New York Uniform Commercial Code; and |
| ● | a “clearing agency” registered pursuant to the provisions of Section 17A of the Securities
Exchange Act of 1934, as amended, or Exchange Act. |
DTC holds securities that its participants deposit
with DTC. DTC also facilitates the settlement among its participants of securities transactions, such as transfers and pledges, in deposited
securities through electronic computerized book-entry changes in participants’ accounts, thereby eliminating the need for physical
movement of securities certificates. “Direct participants” in DTC include securities brokers and dealers, including underwriters,
banks, trust companies, clearing corporations and other organizations. DTC is a wholly-owned subsidiary of The Depository Trust &
Clearing Corporation, or DTCC. DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing
Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access to the DTC
system is also available to others, which we sometimes refer to as indirect participants, that clear through or maintain a custodial relationship
with a direct participant, either directly or indirectly. The rules applicable to DTC and its participants are on file with the SEC.
Purchases of securities under the DTC system must
be made by or through direct participants, which will receive a credit for the securities on DTC’s records. The ownership interest
of the actual purchaser of a security, which we sometimes refer to as a beneficial owner, is in turn recorded on the direct and indirect
participants’ records. Beneficial owners of securities will not receive written confirmation from DTC of their purchases. However,
beneficial owners are expected to receive written confirmations providing details of their transactions, as well as periodic statements
of their holdings, from the direct or indirect participants through which they purchased securities. Transfers of ownership interests
in global securities are to be accomplished by entries made on the books of participants acting on behalf of beneficial owners. Beneficial
owners will not receive certificates representing their ownership interests in the global securities, except under the limited circumstances
described below.
To facilitate subsequent transfers, all global
securities deposited by direct participants with DTC will be registered in the name of DTC’s partnership nominee, Cede &
Co., or such other name as may be requested by an authorized representative of DTC. The deposit of securities with DTC and their registration
in the name of Cede & Co. or such other nominee will not change the beneficial ownership of the securities. DTC has no knowledge
of the actual beneficial owners of the securities. DTC’s records reflect only the identity of the direct participants to whose accounts
the securities are credited, which may or may not be the beneficial owners. The participants are responsible for keeping account of their
holdings on behalf of their customers.
So long as the securities are in book-entry form,
you will receive payments and may transfer securities only through the facilities of the depositary and its direct and indirect participants.
We will maintain an office or agency in the location specified in the prospectus supplement for the applicable securities, where notices
and demands in respect of the securities and the indenture may be delivered to us and where certificated securities may be surrendered
for payment, registration of transfer or exchange.
Conveyance of notices and other communications
by DTC to direct participants, by direct participants to indirect participants and by direct participants and indirect participants to
beneficial owners will be governed by arrangements among them, subject to any legal requirements in effect from time to time.
Redemption notices will be sent to DTC. If less
than all of the securities of a particular series are being redeemed, DTC’s practice is to determine by lot the amount of the interest
of each direct participant in the securities of such series to be redeemed.
Neither DTC nor Cede & Co. (or such other
DTC nominee) will consent or vote with respect to the securities. Under its usual procedures, DTC will mail an omnibus proxy to us as
soon as possible after the record date. The omnibus proxy assigns the consenting or voting rights of Cede & Co. to those direct
participants to whose accounts the securities of such series are credited on the record date, identified in a listing attached to the
omnibus proxy.
So long as securities are in book-entry form,
we will make payments on those securities to the depositary or its nominee, as the registered owner of such securities, by wire transfer
of immediately available funds. If securities are issued in definitive certificated form under the limited circumstances described below,
we will have the option of making payments by check mailed to the addresses of the persons entitled to payment or by wire transfer to
bank accounts in the United States designated in writing to the applicable trustee or other designated party at least 15 days
before the applicable payment date by the persons entitled to payment, unless a shorter period is satisfactory to the applicable trustee
or other designated party.
Redemption proceeds, distributions and dividend
payments on the securities will be made to Cede & Co., or such other nominee as may be requested by an authorized representative
of DTC. DTC’s practice is to credit direct participants’ accounts upon DTC’s receipt of funds and corresponding detail
information from us on the payment date in accordance with their respective holdings shown on DTC records. Payments by participants to
beneficial owners will be governed by standing instructions and customary practices, as is the case with securities held for the account
of customers in bearer form or registered in “street name.” Those payments will be the responsibility of participants and
not of DTC or us, subject to any statutory or regulatory requirements in effect from time to time. Payment of redemption proceeds, distributions
and dividend payments to Cede & Co., or such other nominee as may be requested by an authorized representative of DTC, is our
responsibility, disbursement of payments to direct participants is the responsibility of DTC, and disbursement of payments to the beneficial
owners is the responsibility of direct and indirect participants.
Except under the limited circumstances described
below, purchasers of securities will not be entitled to have securities registered in their names and will not receive physical delivery
of securities. Accordingly, each beneficial owner must rely on the procedures of DTC and its participants to exercise any rights under
the securities and the indenture.
The laws of some jurisdictions may require that
some purchasers of securities take physical delivery of securities in definitive form. Those laws may impair the ability to transfer or
pledge beneficial interests in securities.
DTC may discontinue providing its services as
securities depositary with respect to the securities at any time by giving reasonable notice to us. Under such circumstances, in the event
that a successor depositary is not obtained, securities certificates are required to be printed and delivered.
As noted above, beneficial owners of a particular
series of securities generally will not receive certificates representing their ownership interests in those securities. However, if:
| ● | DTC notifies us that it is unwilling or unable to continue as a depositary for the global security or
securities representing such series of securities or if DTC ceases to be a clearing agency registered under the Exchange Act at a time
when it is required to be registered and a successor depositary is not appointed within 90 days of the notification to us or of our becoming
aware of DTC’s ceasing to be so registered, as the case may be; |
| ● | we determine, in our sole discretion, not to have such securities represented by one or more global securities;
or |
| ● | an Event of Default has occurred and is continuing with respect to such series of securities, we will
prepare and deliver certificates for such securities in exchange for beneficial interests in the global securities. Any beneficial interest
in a global security that is exchangeable under the circumstances described in the preceding sentence will be exchangeable for securities
in definitive certificated form registered in the names that the depositary directs. It is expected that these directions will be based
upon directions received by the depositary from its participants with respect to ownership of beneficial interests in the global securities. |
We have obtained the information in this section
and elsewhere in this prospectus concerning DTC and DTC’s book-entry system from sources that are believed to be reliable, but we
take no responsibility for the accuracy of this information.
PLAN OF DISTRIBUTION
This prospectus relates to from time to time the
offer and sale by us of up to $100,000,000 in the aggregate of the Company’s Common Stock, preferred stock, debt securities, warrants,
rights or units.
We are registering the securities covered by this
prospectus on our behalf. All costs, expenses and fees connected with the registration of such securities will be borne by us. Any brokerage
commissions and similar expenses connected with selling such securities will be borne by us according to the allocation of securities
sold.
Upon effectiveness of the registration statement
of which this prospectus forms a part, the securities beneficially owned by us covered by this prospectus may be offered and sold from
time to time by us. We may sell securities, from time to time through one or more underwriters, dealers or agents, directly to one or
more purchasers or through a combination of any of these methods of sale or any other method permitted by law. We may sell securities
offered by this prospectus on any stock exchange, market or trading facility on which the securities are traded or in private transactions.
Subject to the limitations set forth in any applicable registration rights agreement, we may use any one or more of the following methods
when selling the securities offered by this prospectus:
| ● | purchases by a broker-dealer as principal and resale by such broker-dealer for its own account pursuant
to this prospectus; |
| ● | ordinary brokerage transactions and transactions in which the broker solicits purchasers; |
| ● | block trades in which the broker-dealer so engaged will attempt to sell the securities as agent but may
position and resell a portion of the block as principal to facilitate the transaction; |
| ● | an over-the-counter distribution in accordance with the rules of the applicable exchange; |
| ● | settlement of short sales entered into after the date of this prospectus; |
| ● | agreements with broker-dealers to sell a specified number of the securities at a stipulated price per
share; |
| ● | “at the market” offerings, as defined in Rule 415 under the Securities Act, at negotiated
prices, at prices prevailing at the time of sale or at prices related to such prevailing market prices, including sales made directly
on a national securities exchange or sales made through a market maker other than on an exchange or other similar offerings through sales
agents; |
| ● | sales directly to purchasers, including through a specific bidding, auction or other process or in privately
negotiated transactions; |
| ● | through the writing or settlement of options or other hedging transactions, whether through an options
exchange or otherwise; |
| ● | through a combination of any of the above methods; or |
| ● | any other method permitted pursuant to applicable law. |
Each time that we sell securities covered by this
prospectus, we will provide a prospectus supplement or supplements that will describe the method of distribution and set forth the terms
and conditions of the offering of such securities, including the offering price of the securities and the proceeds to us, if applicable.
Offers to purchase the securities being offered
by this prospectus may be solicited directly. Agents may also be designated to solicit offers to purchase the securities from time to
time. Any agent involved in the offer or sale of our securities will be identified in a prospectus supplement.
If a dealer is utilized in the sale of the securities
being offered by this prospectus, the securities will be sold to the dealer, as principal. The dealer may then resell the securities to
the public at varying prices to be determined by the dealer at the time of resale.
If an underwriter is utilized in the sale of the
securities being offered by this prospectus, an underwriting agreement will be executed with the underwriter at the time of sale and the
name of any underwriter will be provided in the prospectus supplement that the underwriter will use to make resales of the securities
to the public. In connection with the sale of the securities, we or the purchasers of securities for whom the underwriter may act as agent,
may compensate the underwriter in the form of underwriting discounts or commissions. The underwriter may sell the securities to or through
dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or
commissions from the purchasers for which they may act as agent. Unless otherwise indicated in a prospectus supplement, an agent will
be acting on a best efforts basis and a dealer will purchase securities as a principal, and may then resell the securities at varying
prices to be determined by the dealer.
Any compensation paid to underwriters, dealers
or agents in connection with the offering of the securities, and any discounts, concessions or commissions allowed by underwriters to
participating dealers will be provided in the applicable prospectus supplement. Underwriters, dealers and agents participating in the
distribution of the securities may be deemed to be underwriters within the meaning of the Securities Act of 1933, as amended (which we
refer to as the “Securities Act” in this prospectus,), and any discounts and commissions received by them and any profit realized
by them on resale of the securities may be deemed to be underwriting discounts and commissions. We may enter into agreements to indemnify
underwriters, dealers and agents against civil liabilities, including liabilities under the Securities Act, or to contribute to payments
they may be required to make in respect thereof and to reimburse those persons for certain expenses.
We may enter into hedging transactions with broker-dealers
or other financial institutions, which may in turn engage in short sales of our securities in the course of hedging the positions they
assume. We may also sell the securities short and deliver these securities to close out their short positions, or loan or pledge the securities
to broker-dealers that in turn may sell these shares. We may also enter into option or other transactions with broker-dealers or
other financial institutions or the creation of one or more derivative securities which require the delivery to such broker-dealer or
other financial institution of shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell
pursuant to this prospectus (as supplemented or amended to reflect such transaction). The third party in such sale transactions will be
an underwriter and will be identified in the applicable prospectus supplement (or a post-effective amendment to the registration statement
of which this prospectus is a part).
In order to comply with the securities laws of
certain states, if applicable, the securities must be sold in such jurisdictions only through registered or licensed brokers or dealers.
In addition, in certain states the securities may not be sold unless they have been registered or qualified for sale in the applicable
state or an exemption from the registration or qualification requirement is available and is complied with.
LEGAL MATTERS
Unless otherwise indicated in an applicable prospectus
supplement, the validity of the securities to be offered by this prospectus will be passed upon for us by White & Case LLP, 1221 Avenue
of the Americas, New York, New York 10020 and for any agents, underwriters, dealers, remarketing firms or other third parties by counsel
named in the applicable prospectus supplement.
EXPERTS
The financial statements of the Company and subsidiaries
as of and for the year ended December 31, 2023, incorporated by reference in this prospectus, have been audited by Deloitte & Touche
LLP, an independent registered public accounting firm, as stated in their report. Such financial statements are incorporated by reference
in reliance upon the report of such firm given their authority as experts in accounting and auditing.
The consolidated financial statements of the Company and subsidiaries as of and for the year ended December 31, 2022, have been incorporated
by reference in this prospectus, have been audited by Frank, Rimerman + Co. LLP, an independent registered public accounting firm, as
stated in their report. Such financial statements are incorporated by reference in reliance upon the report of such firm given their authority
as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports,
proxy statements and other information with the SEC. We have also filed a registration statement on Form S-3, including exhibits,
under the Securities Act with respect to the securities offered by this prospectus. This prospectus is part of the registration statement,
but does not contain all of the information included in the registration statement or the exhibits. Our SEC filings are available to the
public on the internet at a website maintained by the SEC located at http://www.sec.gov. Those filings are also available to the public
on, or accessible through, our website under the heading “Investors” at https://www.tigoenergy.com/. The information
on our web site, however, is not, and should not be deemed to be, a part of this prospectus.
The SEC’s rules allow us to “incorporate
by reference” information into this prospectus, which means that we can disclose important information to you by referring you to
another document filed separately with the SEC. The information incorporated by reference is deemed to be part of this prospectus, and
subsequent information that we file with the SEC will automatically update and supersede that information. Any statement contained in
this prospectus or a previously filed document incorporated by reference will be deemed to be modified or superseded for purposes of this
prospectus to the extent that a statement contained in this prospectus or a subsequently filed document incorporated by reference modifies
or replaces that statement.
This prospectus and any accompanying prospectus
supplement incorporate by reference the documents set forth below (excluding any portions of such documents that have been “furnished
to” but not “filed with” the SEC for purposes of the Exchange Act):
| ● | our Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on March 21, 2024; |
| | |
| ● | the information specifically incorporated by reference into our Annual Report on Form 10-K for the year
ended December 31, 2023, from our Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 5, 2024, as supplemented by
our Additional Definitive Proxy Materials on Schedule 14A, filed with the SEC on April 19, 2024; |
| | |
| ● | our Quarterly Report on Form 10-Q for the quarter ended March 31, 2024, filed with the SEC on May 14,
2024 and our Quarterly Report on Form 10-Q for the quarter ended June 30, 2024, filed with the SEC on August 6, 2024; |
| | |
| ● | our Current Reports on Form 8-K, filed with the SEC on February 8, 2024 and May 21, 2024; and |
| | |
| ● | the description of our capital stock contained in our Registration Statement on Form 8-A (File No. 001-40710)
as originally filed with the SEC on August 4, 2021 and any amendment or report filed for the purpose of updating this information (including
Exhibit 4.2 to our Annual Report on Form 10-K for the fiscal year ended December 31, 2023), which description is incorporated herein by
reference. |
All reports and other documents we subsequently
file pursuant to Section 13(a), 13(c), 14 or 15(d) of Exchange Act prior to the termination of this offering, including all such
documents we may file with the SEC after the date of the initial registration statement and prior to the effectiveness of the registration
statement, but excluding any information “furnished to,” rather than “filed with,” the SEC under the Exchange
Act, will also be incorporated by reference into this prospectus and deemed to be part of this prospectus from the date of the filing
of such reports and documents.
You may request a free copy of any of the documents
incorporated by reference in this prospectus by writing or telephoning us at the following address:
Tigo Energy, Inc.
655 Campbell Technology Parkway, Suite 150
Campbell, California 95008
(408) 402-0802
Attention: Bill Roeschlein
Exhibits to the filings will not be sent, however, unless those exhibits
have specifically been incorporated by reference in this prospectus or any accompanying prospectus supplement.
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions, we have
been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore
unenforceable.
PROSPECTUS
Tigo Energy, Inc.
$100,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Rights
Units
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance
and Distribution
The following table sets
forth the estimated expenses expected to be borne by the registrant in connection with the securities being registered hereby, other than
underwriting discounts and commissions. All of the amounts are estimates, other than the SEC registration fee and the FINRA filing fee.
The amounts do not include expenses related to offerings of particular securities. Each prospectus supplement describing an offering of
securities will reflect the estimated expenses related to the offering of securities under that prospectus supplement.
| |
Amount | |
Securities and Exchange Commission registration fee | |
$ | 14,760 | |
Accountants’ fees and expenses | |
| * | |
Legal fees and expenses | |
| * | |
Financial Industry Regulatory Authority (FINRA) filing fee | |
| * | |
Miscellaneous | |
| * | |
Total expenses | |
$ | 14,760 | |
| * | These fees are calculated based on the securities offered and
the number of issuances and accordingly cannot be determined at this time. |
Item 15. Indemnification of Directors
and Officers
Section 102 of the DGCL permits a corporation
to eliminate the personal liability of directors of a corporation to the corporation or its stockholders for monetary damages for a breach
of fiduciary duty as a director, except where the director breached his duty of loyalty, failed to act in good faith, engaged in intentional
misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate
law or obtained an improper personal benefit. Our certificate of incorporation provides that no director of the Registrant shall be personally
liable to it or its stockholders for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision of
law imposing such liability, except to the extent that the DGCL prohibits the elimination or limitation of liability of directors for
breaches of fiduciary duty.
Section 145 of the DGCL provides that a corporation
has the power to indemnify a director, officer, employee, or agent of the corporation, or a person serving at the request of the corporation
for another corporation, partnership, joint venture, trust or other enterprise in related capacities against expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with an action, suit
or proceeding to which he was or is a party or is threatened to be made a party to any threatened, ending or completed action, suit or
proceeding by reason of such position, if such person acted in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the corporation, and, in any criminal action or proceeding, had no reasonable cause to believe his conduct was
unlawful, except that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect
to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the
extent that the Delaware 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, such person is fairly and reasonably entitled to indemnity for such expenses which the Delaware
Court of Chancery or such other court shall deem proper.
Our certificate of incorporation provides that
we will indemnify each person who was or is a party or threatened to be made a party to any threatened, pending or completed action, suit
or proceeding (other than an action by or in the right of us) by reason of the fact that he or she is or was, or has agreed to become,
a director or officer, or is or was serving, or has agreed to serve, at our request as a director, officer, partner, employee or trustee
of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (all such persons being
referred to as an “Indemnitee”), or by reason of any action alleged to have been taken or omitted in such capacity, against
all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection
with such action, suit or proceeding and any appeal therefrom, if such Indemnitee acted in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, our best interests, and, with respect to any criminal action or proceeding, he or she had no reasonable
cause to believe his or her conduct was unlawful. Our certificate of incorporation provides that we will indemnify any Indemnitee who
was or is a party to an action or suit by or in the right of us to procure a judgment in our favor by reason of the fact that the Indemnitee
is or was, or has agreed to become, a director or officer, or is or was serving, or has agreed to serve, at our request as a director,
officer, partner, employee or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other
enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’
fees) and, to the extent permitted by law, amounts paid in settlement actually and reasonably incurred in connection with such action,
suit or proceeding, and any appeal therefrom, if the Indemnitee acted in good faith and in a manner he or she reasonably believed to be
in, or not opposed to, our best interests, except that no indemnification shall be made with respect to any claim, issue or matter as
to which such person shall have been adjudged to be liable to us, unless a court determines that, despite such adjudication but in view
of all of the circumstances, he or she is entitled to indemnification of such expenses. Notwithstanding the foregoing, to the extent that
any Indemnitee has been successful, on the merits or otherwise, he or she will be indemnified by us against all expenses (including attorneys’
fees) actually and reasonably incurred in connection therewith. Expenses must be advanced to an Indemnitee under certain circumstances.
We have entered into indemnification agreements
with each of our directors and officers. These indemnification agreements may require us, among other things, to indemnify our directors
and officers for some expenses, including attorneys’ fees, judgments, fines and settlement amounts incurred by a director or officer
in any action or proceeding arising out of his or her service as one of our directors or officers, or any of our subsidiaries or any other
company or enterprise to which the person provides services at our request.
We maintain a general liability insurance policy
that covers certain liabilities of directors and officers of our corporation arising out of claims based on acts or omissions in their
capacities as directors or officers.
In any underwriting agreement we enter into in
connection with the sale of Common Stock being registered hereby, the underwriters will agree to indemnify, under certain conditions,
us, our directors, our officers and persons who control us within the meaning of the Securities Act against certain liabilities.
Item 16. Exhibits
Exhibit
Number |
|
Exhibit Description |
1.1* |
|
Form of Underwriting Agreement for Securities Offered Hereby. |
|
|
|
2.2
| |
Amendment No. 1 to Merger Agreement by and among Roth CH Acquisition IV Co., Tigo Energy, Inc. and Roth IV Merger Sub Inc., dated as of April 6, 2023 (incorporated by reference to Exhibit 2.2 to the Company’s Registration Statement on S-4/A (File No. 333-264811), filed with the SEC on April 20, 2023). |
|
|
|
4.1 |
|
Specimen Common Stock Certificate (incorporated by reference to Exhibit 4.2 to the Company’s Registration Statement on S-4/A (File No. 333-264811), filed with the SEC on April 20, 2023). |
|
|
|
4.2 |
|
Second Amended and Restated Certificate of Incorporation of Tigo Energy, Inc. (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed with the SEC on May 30, 2023). |
|
|
|
4.3 |
|
Amended and Restated Bylaws of Tigo Energy, Inc. (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K, filed with the SEC on May 30, 2023). |
|
|
|
4.4 |
|
Amended and Restated Registration Rights Agreement, dated as of May 23, 2023, by and among Tigo Energy, Inc., CHLM Sponsor LLC, CR Financial Holdings, Inc., and each party listed under Holder on the signature pages thereto (incorporated by reference to Exhibit 10.2 the Company’s Current Report on Form 8-K, filed with the SEC on May 30, 2023). |
|
|
|
4.5* |
|
Form of Preferred Stock Certificate. |
|
|
|
4.6+ |
|
Form of Indenture Relating to the Company’s Debt Securities. |
|
|
|
4.7* |
|
Form of Debt Security. |
|
|
|
4.8* |
|
Form of Warrant. |
|
|
|
4.9* |
|
Form of Warrant Agreement. |
|
|
|
4.10* |
|
Form of Rights Certificate. |
|
|
|
4.11* |
|
Form of Rights Agreement. |
|
|
|
4.12* |
|
Form of Unit Certificate. |
|
|
|
4.13* |
|
Form of Unit Agreement. |
|
|
|
5.1+ |
|
Opinion of White & Case LLP. |
|
|
|
23.1+ |
|
Consent of Frank, Rimerman + Co. LLP. |
|
|
|
23.2+ |
|
Consent of Deloitte & Touche LLP. |
|
|
|
23.3+ |
|
Consent of White & Case LLP (included in Exhibit 5.1 hereto). |
|
|
|
24.1+ |
|
Power of Attorney (included on the signature page to this Annual Report). |
|
|
|
25.1** |
|
Statement of Eligibility of Trustee on Form T-1, as Trustee under the Indenture for Debt Securities. |
|
|
|
107+ |
|
Filing Fee Table. |
+ |
Filed herewith. |
* |
To be filed, if applicable, as an exhibit to a post-effective amendment to this registration statement or as an exhibit to a Current Report on Form 8-K or other report to be filed by the Company pursuant to Section 13(a) or 15(d) of the Exchange Act and incorporated herein by reference. |
** |
Where applicable, to be incorporated by referenced to a subsequent filing in accordance with Section 305(b)(2) of the Trust Indenture Act of 1939, as amended. |
Item 17. Undertakings
| (a) | The undersigned registrant hereby undertakes: |
| (1) | to file, during any period in which offers or sales are being made, a post-effective amendment to
this registration statement: |
| (i) | to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended
(the “Securities Act”); |
| (ii) | to reflect in the prospectus any facts or events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) under
the Securities Act if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
and |
| (iii) | to include any material information with respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs
(1)(i), (1)(ii) and (1)(iii) do not apply if the registration statement is on Form S-3 and the information required to be included in
a post-effective amendment by those clauses is contained in reports filed with or furnished to the SEC by such registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are incorporated
by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of 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 such 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 the 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 an undersigned registrant; and |
| (iv) | any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
| (b) | Each undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities
Act, each filing of such registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and where applicable,
each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (c) | Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised
that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue. |
| (d) | Each undersigned registrant hereby undertakes to file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act, as amended, in accordance with the rules
and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act, as amended. |
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 Campbell, State of California, on September 9, 2024.
TIGO ENERGY, INC. |
|
|
|
|
By: |
/s/ Zvi Alon |
|
|
Zvi Alon |
|
|
Chief Executive Officer and Director |
|
|
(Principal Executive Officer) |
|
POWER OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Zvi Alon and Bill Roeschlein,
or either of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for
him or her and in his or her name, place and stead, in any and all capacities, to file and sign any and all amendments (including post-effective
amendments), supplements and additions to this registration statement, 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 to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or their substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Name |
|
Title |
|
Date |
|
|
|
|
|
/s/ Zvi Alon |
|
Chief Executive Officer and Director |
|
September 9, 2024 |
Zvi Alon |
|
(Principal Executive Officer) |
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|
|
|
|
|
/s/ Bill Roeschlein |
|
Chief Financial Officer |
|
September 9, 2024 |
Bill Roeschlein |
|
(Principal Financial Officer and Principal Accounting Officer) |
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|
|
|
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|
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/s/ Tomer Babai |
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Director |
|
September 9, 2024 |
Tomer Babai |
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/s/ Joan C. Conley |
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Director |
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September 9, 2024 |
Joan C. Conley |
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/s/ Sagit Manor |
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Director |
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September 9, 2024 |
Sagit Manor |
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/s/ Michael Splinter |
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Director |
|
September 9, 2024 |
Michael Splinter |
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/s/ Stanley Stern |
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Director |
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September 9, 2024 |
Stanley Stern |
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/s/ John Wilson |
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Director |
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September 9, 2024 |
John Wilson |
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|
II-6
Exhibit 4.6
INDENTURE
TIGO ENERGY, INC.
and
[___]
Trustee
Dated as of __,
20__
TABLE OF CONTENTS
Article I Definitions and Incorporation by Reference |
1 |
|
|
|
Section 1.1 |
Definitions |
1 |
Section 1.2 |
Other Definitions |
3 |
Section 1.3 |
Incorporation by Reference of Trust Indenture Act |
4 |
Section 1.4 |
Rules of Construction |
4 |
|
|
|
Article II The Securities |
5 |
|
|
|
Section 2.1 |
Issuable in Series |
5 |
Section 2.2 |
Establishment of Terms of Series of Securities |
5 |
Section 2.3 |
Execution and Authentication |
7 |
Section 2.4 |
Registrar, Paying Agent and Notice Agent |
8 |
Section 2.5 |
Paying Agent to Hold Money in Trust |
8 |
Section 2.6 |
Holder Lists |
9 |
Section 2.7 |
Transfer and Exchange |
9 |
Section 2.8 |
Mutilated, Destroyed, Lost and Stolen Securities |
9 |
Section 2.9 |
Outstanding Securities |
10 |
Section 2.10 |
Treasury Securities |
10 |
Section 2.11 |
Temporary Securities |
11 |
Section 2.12 |
Cancellation |
11 |
Section 2.13 |
Defaulted Interest |
11 |
Section 2.14 |
Global Securities |
11 |
Section 2.15 |
CUSIP Numbers |
13 |
|
|
|
Article III Redemption |
13 |
|
|
|
Section 3.1 |
Notice to Trustee |
13 |
Section 3.2 |
Selection of Securities to be Redeemed |
13 |
Section 3.3 |
Notice of Redemption |
14 |
Section 3.4 |
Effect of Notice of Redemption |
15 |
Section 3.5 |
Deposit of Redemption Price |
15 |
Section 3.6 |
Securities Redeemed in Part |
15 |
|
|
|
Article IV Covenants |
15 |
|
|
|
Section 4.1 |
Payment of Principal and Interest |
15 |
Section 4.2 |
SEC Reports |
15 |
Section 4.3 |
Compliance Certificate |
16 |
Section 4.4 |
Stay, Extension and Usury Laws |
16 |
Article V Successors |
16 |
|
|
|
Section 5.1 |
When Company May Merge, Etc. |
16 |
Section 5.2 |
Successor Corporation Substituted |
17 |
|
|
|
Article VI Defaults and Remedies |
17 |
|
|
|
Section 6.1 |
Events of Default |
17 |
Section 6.2 |
Acceleration of Maturity; Rescission and Annulment |
18 |
Section 6.3 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
19 |
Section 6.4 |
Trustee May File Proofs of Claim |
19 |
Section 6.5 |
Trustee May Enforce Claims Without Possession of Securities |
20 |
Section 6.6 |
Application of Money Collected |
20 |
Section 6.7 |
Limitation on Suits |
20 |
Section 6.8 |
Unconditional Right of Holders to Receive Principal and Interest |
21 |
Section 6.9 |
Restoration of Rights and Remedies |
21 |
Section 6.10 |
Rights and Remedies Cumulative |
21 |
Section 6.11 |
Delay or Omission Not Waiver |
21 |
Section 6.12 |
Control by Holders |
21 |
Section 6.13 |
Waiver of Past Defaults |
22 |
Section 6.14 |
Undertaking for Costs |
22 |
|
|
|
Article VII Trustee |
22 |
|
|
|
Section 7.1 |
Duties of Trustee |
22 |
Section 7.2 |
Rights of Trustee |
24 |
Section 7.3 |
Individual Rights of Trustee |
25 |
Section 7.4 |
Trustee’s Disclaimer |
25 |
Section 7.5 |
Notice of Defaults |
25 |
Section 7.6 |
Reports by Trustee to Holders |
26 |
Section 7.7 |
Compensation and Indemnity |
26 |
Section 7.8 |
Replacement of Trustee |
26 |
Section 7.9 |
Successor Trustee by Merger, Etc. |
27 |
Section 7.10 |
Eligibility; Disqualification |
27 |
Section 7.11 |
Preferential Collection of Claims Against Company |
27 |
|
|
|
Article VIII Satisfaction and Discharge; Defeasance |
28 |
|
|
|
Section 8.1 |
Satisfaction and Discharge of Indenture |
28 |
Section 8.2 |
Application of Trust Funds; Indemnification |
29 |
Section 8.3 |
Legal Defeasance of Securities of any Series |
29 |
Section 8.4 |
Covenant Defeasance |
31 |
Section 8.5 |
Repayment to Company |
32 |
Section 8.6 |
Reinstatement |
32 |
Article IX Amendments and Waivers |
32 |
|
|
|
Section 9.1 |
Without Consent of Holders |
32 |
Section 9.2 |
With Consent of Holders |
33 |
Section 9.3 |
Limitations |
33 |
Section 9.4 |
Compliance with Trust Indenture Act |
34 |
Section 9.5 |
Revocation and Effect of Consents |
34 |
Section 9.6 |
Notation on or Exchange of Securities |
34 |
Section 9.7 |
Trustee Protected |
34 |
|
|
|
Article X Miscellaneous |
35 |
|
|
|
Section 10.1 |
Trust Indenture Act Controls |
35 |
Section 10.2 |
Notices |
35 |
Section 10.3 |
Communication by Holders with Other Holders |
36 |
Section 10.4 |
Certificate and Opinion as to Conditions Precedent |
36 |
Section 10.5 |
Statements Required in Certificate or Opinion |
36 |
Section 10.6 |
Rules by Trustee and Agents |
37 |
Section 10.7 |
Legal Holidays |
37 |
Section 10.8 |
No Recourse Against Others |
37 |
Section 10.9 |
Counterparts |
37 |
Section 10.10 |
Governing Law; Waiver of Jury Trial; Consent to Jurisdiction |
38 |
Section 10.11 |
No Adverse Interpretation of Other Agreements |
38 |
Section 10.12 |
Successors |
38 |
Section 10.13 |
Severability |
38 |
Section 10.14 |
Table of Contents, Headings, Etc. |
38 |
Section 10.15 |
Securities in a Foreign Currency |
39 |
Section 10.16 |
Judgment Currency |
39 |
Section 10.17 |
Force Majeure |
39 |
Section 10.18 |
U.S.A. Patriot Act |
40 |
|
|
|
Article XI Sinking Funds |
40 |
|
|
|
Section 11.1 |
Applicability of Article |
40 |
Section 11.2 |
Satisfaction of Sinking Fund Payments with Securities |
40 |
Section 11.3 |
Redemption of Securities for Sinking Fund |
40 |
Tigo
Energy, Inc.
Reconciliation and tie between Trust Indenture
Act of 1939 and
Indenture, dated as of __, 20__
§ 310(a)(1) |
Section 7.10 |
(a)(2) |
Section 7.10 |
(a)(3) |
Not Applicable |
(a)(4) |
Not Applicable |
(a)(5) |
Section 7.10 |
(b) |
Section 7.10 |
§ 311(a) |
Section 7.11 |
(b) |
Section 7.11 |
(c) |
Not Applicable |
§ 312(a) |
Section 2.6 |
(b) |
Section 10.3 |
(c) |
Section 10.3 |
§ 313(a) |
Section 7.6 |
(b)(1) |
Section 7.6 |
(b)(2) |
Section 7.6 |
(c)(1) |
Section 7.6 |
(d) |
Section 7.6 |
§ 314(a) |
Section 4.2, Section 10.5 |
(b) |
Not Applicable |
(c)(1) |
Section 10.4 |
(c)(2) |
Section 10.4 |
(c)(3) |
Not Applicable |
(d) |
Not Applicable |
(e) |
Section 10.5 |
(f) |
Not Applicable |
§ 315(a) |
Section 7.1 |
(b) |
Section 7.5 |
(c) |
Section 7.1 |
(d) |
Section 7.1 |
(e) |
Section 6.14 |
§ 316(a) |
Section 2.10 |
(a)(1)(A) |
Section 6.12 |
(a)(1)(B) |
Section 6.13 |
(b) |
Section 6.8 |
§ 317(a)(1) |
Section 6.3 |
(a)(2) |
Section 6.4 |
(b) |
Section 2.5 |
§ 318(a) |
Section 10.1 |
Note: This reconciliation and tie shall not, for
any purpose, be deemed to be part of the Indenture.
Indenture, dated as of __________, 20__, between
Tigo Energy, Inc., a company incorporated under the laws of Delaware (“Company”), and [______] (“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
Section 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 and delivered to the Trustee.
“Corporate Trust Office” means
the office of the Trustee at which at any particular time its corporate trust business related to this Indenture shall be principally
administered.
“Default” means any event which
is, or after notice, 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 generally accepted
accounting principles 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” means a person in
whose name a Security is registered on the Registrar’s books.
“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 Chairman
of the Board of Directors, the Chief Executive Officer, President, the Chief Financial Officer, the Treasurer or any Assistant Treasurer,
the Secretary or any Assistant Secretary, any Executive Vice President, any Senior Vice President or any Vice President of the Company.
“Officer’s Certificate”
means a certificate signed by any Officer that meets the requirements of this Indenture.
“Opinion of Counsel” means
a written opinion of legal counsel, which may be an employee of or counsel to the Company and which opinion may contain customary limitations,
conditions and exceptions.
“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 responsibility for 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 U.S. Securities
and Exchange Commission.
“Security” or “Securities”
means the debentures, notes or other debt instruments of the Company of any Series authenticated and delivered under this Indenture.
“Securities Act” means the
Securities Act of 1933, as amended.
“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 Section 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 depositary 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.
Section 1.2 Other
Definitions.
TERM |
|
Defined in Section |
“Agent Member” |
|
2.14.6 |
“Bankruptcy Law” |
|
6.1 |
“Custodian” |
|
6.1 |
“Event of Default” |
|
6.1 |
“Issuing Document” |
|
2.1 |
“Judgment Currency” |
|
10.16 |
“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 |
Section 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 Holder.
“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.
Section 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; |
| (e) | provisions apply to successive events and transactions; |
| (f) | in the computation of periods of time from a specified date to a later specified date, the word “from”
means “from and including,” and the words “to” and “until” each mean “to but excluding”;
and |
| (g) | the phrase “in writing” as used herein shall be deemed to include PDFs, e-mails and other
electronic means of transmission, unless otherwise indicated. |
Article II
The Securities
Section 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 (any
such Board Resolution, supplemental indenture or Officer’s Certificate, as applicable, for such Series, an “Issuing Document”).
In the case of Securities of a Series to be issued from time to time, the Issuing Document 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.
Section 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 clause (a) below and either as to such
Securities within the Series or as to the Series generally in the case of clauses (b) through (w)) by or pursuant to a Board Resolution,
and set forth or determined in the manner provided in an Issuing Document:
| (a) | 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; |
| (b) | the price or prices (expressed as a percentage of the principal amount thereof) at which the Securities
of the Series will be issued; |
| (c) | 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, Section 2.8, Section 2.11, Section 3.6
or Section 9.6); |
| (d) | the date or dates on which the principal of the Securities of the Series is payable; |
| (e) | 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; |
| (f) | 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; |
| (g) | 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; |
| (h) | 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; |
| (i) | 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; |
| (j) | if other than denominations of $1,000 and any integral multiple thereof, the denominations in which the
Securities of the Series shall be issuable; |
| (k) | the forms of the Securities of the Series and whether the Securities will be issuable as Global Securities; |
| (l) | 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; |
| (m) | 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; |
| (n) | 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; |
| (o) | 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; |
| (p) | 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; |
| (q) | the provisions, if any, relating to any security provided for the Securities of the Series; |
| (r) | 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; |
| (s) | any addition to, deletion of or change in the covenants applicable to Securities of the Series; |
| (t) | any Depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with
respect to Securities of such Series if other than those appointed herein; |
| (u) | 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; |
| (v) | 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 |
| (w) | 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
Issuing Document referred to above.
Section 2.3 Execution and
Authentication.
An Officer shall sign the Securities for the Company
by manual, facsimile or electronic 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 or electronic 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 Issuing Document, upon receipt by the Trustee of a Company Order. Each Security shall be
dated the date of its authentication.
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 Issuing Document 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 and Section 10.5, and (c) an Opinion of Counsel
complying with Section 10.4 and Section 10.5.
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 determines that such action may expose the Trustee to personal liability. 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.
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 Issuing
Document delivered pursuant to Section 2.2, except as provided in Section 2.8.
Section 2.4 Registrar,
Paying Agent and Notice 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 also 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. The rights, powers, duties, obligations and actions of each Agent
under this Indenture are several and not joint or joint and several, and the Agents shall only be obliged to perform those duties expressly
set out in this Indenture and shall have no implied duties.
Section 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 Holders 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 Holders 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. For the
avoidance of doubt, a Paying Agent and the Trustee shall be held harmless and have no liability with respect to payments or disbursements
(including to the Holders) until they have confirmed receipt of funds sufficient to make the relevant payment. No money held by an Agent
needs to be segregated except as is required by law.
Section 2.6 Holder
Lists.
If it is serving as Registrar, 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 Holders
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 Holders of each Series of
Securities.
Every Holder, by receiving and holding Securities,
agrees with the Company and the Trustee that neither the Company nor the Trustee or any agent of either of them shall be held accountable
by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with TIA § 312, regardless
of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under TIA § 312(b).
Section 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, Section 3.6 or Section 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
15 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, (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 or (c) to register the transfer of or exchange Securities of any Series between a record date and payment date for such Series
of Securities.
Section 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 (a) evidence to their satisfaction of the destruction, loss or theft of any Security and (b) 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.
Section 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.
Section 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 knows are so owned shall be so disregarded.
Section 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.
Section
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 and shall destroy such canceled Securities (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 delivered to the Trustee for cancellation.
Section 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 Holders of the Series on a subsequent special record date. The Company shall fix the record date and
payment date. At least ten days before the special record date, the Company shall send to the Trustee and to each Holder 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.
Section 2.14 Global
Securities.
2.14.1 Terms
of Securities. An Issuing Document 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.
None of the Trustee or any Agent shall have any
obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among Depositary
participants, members or beneficial owners in any Global Security) other than to require delivery of such certificates and other documentation
or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine
the same to determine substantial compliance as to form with the express requirements hereof.
None of the Trustee or any Agent shall have any
responsibility or obligation to any beneficial owner of a Global Security, a member of, or a participant in the Depositary or other Person
with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member thereof, with respect to
any ownership interest in any Security or with respect to the delivery to any participant, member, beneficial owner or other Person (other
than the Depositary) of any notice (including any notice of optional redemption) or the payment of any amount, under or with respect to
such Security.
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 Security registered in the name of DTC or its nominee shall bear a legend in substantially
the following form:
“UNLESS THIS GLOBAL SECURITY 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 SECURITY 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 AS 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.
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 Agent
Members. The registered Holder of a Security will be treated as the owner of such Security for all purposes and only registered Holders
shall have rights under this Indenture and the Securities. Members of, or participants in, the Depositary (“Agent Members”)
and persons who hold beneficial interests in a Global Security through an Agent Member shall have no rights under this Indenture with
respect to any Global Security held on their behalf by the Depositary. The Depositary may be treated by the Company, the Trustee, the
Paying Agent, the Registrar and any agent of the foregoing as the absolute owner of the Global Securities for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee, the Paying Agent, the Registrar or any agent of
the foregoing from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as
between the Depositary and its Agent Members, the operation of customary practices of such Depositary governing the exercise of the rights
of a Holder of a beneficial interest in any Global Security.
Section 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.
Article III
Redemption
Section 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 the Series of Securities to be redeemed. The Company shall give the notice at least three Business Days before the redemption
date (or such shorter period as may be acceptable to the Trustee).
Section 3.2 Selection of
Securities to be Redeemed.
Unless otherwise indicated for a particular Series
by an Issuing Document, 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 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 them 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, 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.
Neither the Trustee nor the Paying Agent shall
be liable for any selection made by it in accordance with this paragraph (including the procedures of the Depositary).
Section 3.3 Notice of Redemption.
Unless otherwise indicated for a particular Series
by an Issuing Document, at least three Business 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:
| (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 two Business 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 and the form of
such notice.
Notice of any redemption of any Series of the
Securities (including upon in connection with another transaction (or series of related transactions)) may, at the Company’s discretion,
be given prior to the completion or the occurrence thereof and any such redemption or notice may, at the Company’s discretion, be
subject to one or more conditions precedent, including, but not limited to, completion or occurrence of the such transaction or event,
as the case may be. In addition, if such redemption or purchase is subject to satisfaction of one or more conditions precedent, such notice
shall describe each such condition, and if applicable, shall state that, in the Company’s discretion, the redemption date may be
delayed until such time (including more than 60 days after the date the notice of redemption was mailed or delivered, including by electronic
transmission) as any or all such conditions shall be satisfied (or waived by the Company in its sole discretion), or such redemption or
purchase may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied (or
waived by the Company in its sole discretion) by the redemption date, or by the redemption date as so delayed, or such notice may be rescinded
at any time in the Company’s discretion if in the good faith judgment of the Company any or all of such conditions will not be satisfied.
In addition, the Company may provide in such notice that payment of the redemption price and performance of the Company’s obligations
with respect to such redemption may be performed by another person. In no event shall the Trustee be responsible for monitoring, or charged
with knowledge of, the maximum aggregate amount any Series of Securities eligible under this Indenture to be redeemed. If any such notice
of redemption is rescinded, the Company shall provide written notice thereof to the Trustee and each Holder of such Series of Securities.
Section 3.4 Effect of Notice
of Redemption.
Once notice of redemption is sent as provided
in Section 3.3 and satisfaction of the conditions precedent set forth therein, if any, Securities of a Series called for redemption
become due and payable on the redemption date and at the redemption price. Upon surrender to the Paying Agent, such Securities shall be
paid at the redemption price plus accrued interest to the redemption date.
Section 3.5 Deposit of Redemption
Price.
On or before 11:00 a.m., New York City time, on
the redemption date, the Company shall deposit with the Paying Agent money sufficient to pay the redemption price of and accrued interest,
if any, on all Securities to be redeemed on that date.
Section 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
Section 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.
Section 4.2 SEC Reports.
To the extent any Securities of a Series are outstanding,
the Company shall deliver to the Trustee within 15 days after it files them with the SEC 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. 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 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.
Delivery of reports, information and documents
to the Trustee under this Section 4.2 is 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 the covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s
Certificates). All such reports, information or documents referred to in this Section 4.2 that the Company files with the SEC via
the SEC’s EDGAR system shall be deemed to be filed with the Trustee and transmitted to Holders at the time such reports, information
or documents are filed via the EDGAR system (or any successor system).
Section 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 during the preceding fiscal year has been made under the supervision of the signing
Officer with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture,
and further stating, as to 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).
Section 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
Section 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 entity or the successor person (if other than the Company) is a corporation,
partnership, trust or other entity organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes
by supplemental indenture 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. |
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.
Section 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
Section 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 Issuing Document
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); |
| (b) | default in the payment of principal of any Security of that Series at its Maturity and such default continues
for a period of 10 days; |
| (c) | default in the performance or breach of any covenant or warranty of the Company in this Indenture (other
than defaults pursuant to paragraph (a) or (b) above or pursuant to a covenant or warranty that has been included in this Indenture solely
for the benefit of a Series of Securities other than that Series), which default continues uncured for a period of 90 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 30% 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; |
| (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, or |
| (iv) | makes a general assignment for the benefit of its creditors; |
| (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 |
in each case, the order or decree remains
unstayed and in effect for 90 days; or
| (f) | any other Event of Default provided with respect to Securities of that Series, which is specified in an
Issuing Document, in accordance with Section 2.2(r). |
The term “Bankruptcy Law” means
title 11, U.S. Code or any similar 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 (unless otherwise stated above) 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.
Section 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 30% 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.
Section 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, |
| (b) | default is made in the payment of principal of any Security at the Maturity thereof and such default continues
for a period of 10 days, 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, subject to Article VII hereof, 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.
Section 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.
Section 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.
Section 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.
Section 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 30% 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.
Section 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.
Section 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.
Section 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.
Section 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.
Section 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 |
| (d) | prior to taking any action as directed under this Section 6.12, the Trustee shall be entitled
to indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request
or direction. |
Section 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.
Section 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
Section 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 will 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. |
| (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 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 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 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 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, if adequate indemnity
against such risk is not assured to the Trustee in its satisfaction. |
| (h) | The Paying Agent, the Notice Agent, the Registrar, any authenticating agent and the Trustee when acting
in any other capacity hereunder shall be entitled to the protections and immunities as are set forth in this Article VII. |
| (i) | The rights, privileges, protections, immunities and benefits given to the Trustee, including its right
to be indemnified, are extended to, and will be enforceable by, the Trustee in each of its capacities under this Indenture. |
Section 7.2 Rights of Trustee.
| (a) | The Trustee may 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 agents and shall not be responsible for the misconduct or negligence of any
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 to the Trustee security
or indemnity satisfactory to it against the 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 a Responsible Officer at the Corporate Trust Office of the Trustee, and such notice references the Securities generally or the Securities
of a particular Series and this Indenture. |
| (i) | In no event shall the Trustee be 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. |
| (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) | The Trustee will not be required to give any bond or surety in respect of the execution of this Indenture
or otherwise. |
Section 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.
Section 7.4 Trustee’s
Disclaimer.
The Trustee 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 and shall not be responsible for any statement in the Securities other than its certificate of authentication. The
Trustee represents and warrants that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform
its obligations hereunder and thereunder; that the statements made by it in a Statement of Eligibility on Form T-1 supplied or to
be supplied to the Company in connection with the registration of any Securities are and will be true and accurate subject to the qualifications
set forth therein; and that such Statement complies and will comply in all material respects with the requirements of the TIA and
the Securities Act.
Section 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 known to a Responsible Officer of the Trustee, the Trustee shall
send to each Holder 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; provided that, in the case of any default
or breach of the character specified in Section 6.1(c) with respect to that Series, no such notice to Holders shall be given
until at least 60 days after the occurrence thereof. 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 its corporate trust committee or a committee
of its Responsible Officers in good faith determines that withholding the notice is in the interests of Holders of that Series. The Trustee
will not be deemed to have notice or be charged with knowledge of any Default or Event of Default unless written notice thereof has been
received by a Responsible Officer, and such notice references the applicable Series of Securities and this Indenture and states on its
face that a Default or Event of Default has occurred.
Section 7.6 Reports by Trustee
to Holders.
Within 60 days after each anniversary of this
Indenture, the Trustee shall transmit by mail to all Holders, 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 mailing
to Holders 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.
Section 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, 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 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 determined by a final decision of 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 and the resignation or removal of the Trustee.
Section 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. The Company may remove the Trustee with respect to Securities of one or more Series 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. Immediately after that, 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 Holder 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.
Section 7.9 Successor Trustee
by Merger, Etc.
Any organization or entity into which the Trustee
may be merged or converted or with which it may be consolidated, or any organization or entity resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any organization or entity succeeding to all or substantially all of the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such organization or entity shall be otherwise
qualified and eligible under Section 7.10, without the execution or filing of any paper or any further act on the part of any
of the parties hereto.
Section 7.10 Eligibility;
Disqualification.
This Indenture shall always have a Trustee who
satisfies the requirements of TIA § 310(a)(1), (2) and (5). The Trustee shall always have a combined capital and surplus of at least
$25,000,000 as set forth in its most recent published annual report of condition. The Trustee shall comply with TIA § 310(b).
Section 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
Section 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
| (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, |
| (2) | will become due and payable at their Stated Maturity within one year, |
| (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, has 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 for the purpose of paying and discharging each installment of principal
(including mandatory sinking fund payments 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 has 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, (x) the obligations of the Company to the Trustee under Section 7.7,
(y) 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, and (z) the rights, powers, trusts and immunities of the Trustee hereunder and the Company’s
obligations in connection therewith shall survive. |
Section 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 Sections 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 Sections 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 (which indemnity shall survive termination of this
Indenture) 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. |
Section 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. |
Section 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 an Issuing Document for such Series of Securities 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 an Issuing Document for such Series
of Securities delivered pursuant to Section 2.2 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 payments 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 Officers’ Certificate and an Opinion of Counsel
to the effect 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 and covenant defeasance 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 and covenant defeasance 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. |
Section 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, Holders entitled to the money must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another person.
Section 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
Section 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 Holder:
| (a) | to cure any ambiguity, defect or inconsistency; |
| (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 materially adversely affect the rights of any Holder; |
| (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; or |
| (k) | to comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture
under the TIA. |
Section 9.2 With Consent
of Holders.
Subject to Section 9.3, the Company
and the Trustee may enter into a supplemental indenture with the written consent of the Holders of a majority in 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 Holders of each
such Series. Except as provided in Section 6.13, and subject to Section 9.3, the Holders of a majority in 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 and operative, 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.
Section 9.3 Limitations.
Without the consent of each Holder 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 redemption, sinking fund or analogous obligation other than in accordance with the terms of this
Indenture or any applicable Issuing Document; |
| (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 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; or |
| (g) | make any change in Sections 6.8, 6.13 or 9.3. |
Section 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.
Section 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 Holder of each Series affected by such amendment or waiver unless it is of the type described in any of clauses (a) through
(g) 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 7 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.
Section 9.6 Notation on
or Exchange of Securities.
The Company or the Trustee may, but shall not
be obligated to, 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.
Section 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. 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
Section 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.
Section 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), email or overnight air courier guaranteeing next day delivery,
to the others’ address:
if to the Company:
Tigo Energy, Inc.
655 Campbell Technology Parkway, Suite 150
Campbell, California 95008
Attention: Bill Roeschlein
Telephone: (408) 402-0802
with a copy to:
White & Case LLP
1221 Avenue of the Americas
New York, New York 10020
Attention: Joel Rubinstein
Telephone: (212) 819-8200
AND
White & Case LLP
609 Main Street
Houston, Texas 77002
Attention: Laura Katherine Mann
Telephone: (713) 496-9700
if to the Trustee:
[_____]
Attention: [____]
Telephone: [____]
with a copy to:
[_____]
Attention: [____]
Telephone: [____]
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 to a Holder shall
be sent electronically or by first-class mail or overnight air courier to his, her or its 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 Holder of any Series or any defect
in it shall not affect its sufficiency with respect to other Holders 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 Holder receives it.
If the Company sends a notice or communication
to Holders, it shall send a copy to the Trustee and each Agent at the same time.
The Trustee shall not have any duty to confirm
that the person sending any notice, instruction or other communication by electronic transmission (including by e-mail, facsimile transmission,
web portal or other electronic methods) is, in fact, a person authorized to do so. Electronic signatures believed by the Trustee to comply
with the ESIGN Act of 2000 or other applicable law (including electronic images of handwritten signatures and digital signatures provided
by DocuSign, Orbit, Adobe Sign or any other digital signature provider acceptable to the Trustee) shall be deemed original signatures
for all purposes. The Company assumes all risks arising out of the use of electronic signatures and electronic methods to send communications
to the Trustee, including without limitation the risk of the Trustee acting on an unauthorized communication, and the risk of interception
or misuse by third parties.
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.
Section 10.3 Communication
by Holders with Other Holders.
Holders of any Series may communicate pursuant
to TIA § 312(b) with other Holders 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).
Section 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. |
Section 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, such person has made such examination or investigation
as is necessary to enable such person 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. |
Section 10.6 Rules by Trustee
and Agents.
The Trustee may make reasonable rules for action
by or a meeting of Holders of one or more Series. Any Agent may make reasonable rules and set reasonable requirements for its functions.
Section 10.7 Legal Holidays.
If a payment date for any payment made under this
Indenture is not a Business Day, payment may be made on the next succeeding Business Day, and no interest shall accrue for the intervening
period.
Section 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 Holder 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.
Section 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 electronic format (e.g., “.pdf” or “.tif”) 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 electronic format (e.g., “.pdf” or “.tif”) shall be deemed to be
their original signatures for all purposes.
Unless otherwise provided herein or in any other
Securities, the words “execute”, “execution”, “signed” and “signature” and words of similar
import used in or related to any document to be signed in connection with this Indenture, any Securities or any of the transactions contemplated
hereby (including amendments, waivers, consents and other modifications) shall be deemed to include electronic signatures and the keeping
of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature
in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest extent and as provided for in any applicable law,
including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records
Act and any other similar state laws based on the Uniform Electronic Transactions Act.
Section 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 non-exclusive 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.
Section 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.
Section 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.
Section 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.
Section 10.14 Table of Contents,
Headings, Etc.
The Table of Contents, Cross Reference Table,
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.
Section 10.15 Securities
in a Foreign Currency.
Unless otherwise specified in an Issuing Document
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 an Issuing Document 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.
Section 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.
Section 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, pandemics, epidemics or other public health emergencies, 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.
Section 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
Section 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 an Issuing Document with respect to
such Securities pursuant to Section 2.2, 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.
Section 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.
Section 11.3 Redemption
of Securities for Sinking Fund.
Not less than five Business Days (unless otherwise
indicated in the Issuing Document 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 three Business Days (unless otherwise indicated
in the Issuing Document 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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Tigo Energy, 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: |
41
Exhibit 5.1
September 9, 2024
Tigo Energy, Inc.
655 Campbell Technology Parkway, Suite 150
Campbell, California
Re: Tigo Energy, Inc. - Registration Statement
on Form S-3
Ladies and Gentlemen:
We have acted as New York
counsel to Tigo Energy, Inc., organized under the laws of Delaware (the “Company”), in connection with the preparation
and filing by the Company with the Securities and Exchange Commission (the “Commission”) of a registration statement
on Form S-3 (as amended, the “Registration Statement”) and the related prospectus relating to the registration under
the Securities Act of 1933, as amended (the “Securities Act”), of the offer and sale of up to $100,000,000 in the
aggregate of the Company’s (i) shares of common stock, par value $0.0001 per share (the “Common Stock”), (ii)
shares of one or more series of preferred stock, par value $0.0001 per share (the “Preferred Stock”), (iii) one or
more series of debt securities (the “Debt Securities”), (iv) warrants to purchase Common Stock, Preferred Stock, Debt
Securities, Rights (as defined below), Units (as defined below), or any combination thereof (“Warrants”), (v) rights
to purchase Common Stock, Preferred Stock, Debt Securities, Warrants and/or Units (the “Rights”), and (vi) units consisting
of Common Stock, Preferred Stock, Debt Securities, Warrants and/or Rights (“Units”). The Common Stock, the Preferred
Stock, the Debt Securities, the Warrants, the Rights and the Units are referred to herein collectively as the “Securities.”
The Registration Statement
includes a base prospectus relating to the offer and sale of the Securities (the “Base Prospectus”), which will be
supplemented by one or more prospectus supplements in connection with the sale of the Securities. Each such prospectus supplement, together
with the Base Prospectus, is referred to herein as a “Prospectus.”
This opinion letter is
rendered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act, and no opinion is expressed
herein as to any matter pertaining to the contents of the Registration Statement, the Base Prospectus or any prospectus filed pursuant
to Rule 424(b) with respect thereto, other than as expressly stated herein.
In connection with our opinions
expressed below, we have examined originals or copies certified or otherwise identified to our satisfaction of the following documents
and such other documents, corporate records, certificates and other statements of government officials and corporate officers of the
Company as we deemed necessary for the purposes of the opinions set forth in this opinion letter with respect to the issue of the Securities:
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a) |
the
Registration Statement; |
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b) |
the
Base Prospectus; |
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c) |
a
copy of the Second Amended and Restated Certificate of Incorporation of the Company, filed with the
Secretary of State of the State of Delaware on May 23, 2023 (the “Charter”), certified
by the Secretary of the Company; |
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d) |
a
copy of the Bylaws of the Company as in effect on May 23, 2023, certified by the Secretary of the Company; |
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e) |
a
copy of resolutions of the Board of Directors of the Company (the “Board”) adopted on September 8,
2024; and |
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f) |
the
form indenture pursuant to which the Company’s Debt Securities are to be issued (the “Indenture”), filed
as Exhibit 4.2 to the Registration Statement. |
We have relied, to the
extent we deem such reliance proper, upon such certificates or comparable documents of officers and representatives of the Company and
of public officials and upon statements and information furnished by officers and representatives of the Company with respect to the
accuracy of material factual matters contained therein which were not independently established by us. In rendering the opinions expressed
below, we have assumed, without independent investigation or verification of any kind, the genuineness of all signatures on documents
we have reviewed, the legal capacity and competency of all natural persons signing all such documents, the authenticity and completeness
of all documents submitted to us as originals, the conformity to authentic, complete original documents of all documents submitted to
us as copies, the truthfulness, completeness and correctness of all factual representations and statements contained in all documents
we have reviewed, the accuracy and completeness of all public records examined by us, and the accuracy of all statements in certificates
of officers of the Company that we reviewed.
In rendering the opinions contained
herein, we have assumed that: (i) the Registration Statement and any supplements and amendments thereto, will comply with all applicable
laws (and will remain effective and in compliance at the time of issuance, offer or sale of any Securities thereunder); (ii) a prospectus
supplement describing each class or series of Securities offered pursuant to the Registration Statement, to the extent required by applicable
law and relevant rules and regulations of the Commission, will be timely filed with the Commission and will comply with all applicable
laws; (iii) the definitive terms of each class or series of Securities (to the extent not already outstanding) will have been established
in accordance with the authorizing resolutions adopted by the Board (or an authorized committee thereof), the Charter and applicable
law; (iv) the Company will issue and deliver the Securities in the manner contemplated by the Registration Statement, including the Prospectus,
and any Securities that consist of shares of capital stock will have been authorized and reserved for issuance, in each case within the
limits of the then remaining authorized but unissued and unreserved amounts of such capital stock; (v) the resolutions authorizing the
Company to issue, offer and sell the Securities will have been adopted by the Board (or an authorized committee thereof) and will be
in full force and effect at all times when the Securities are offered or sold by the Company; (vi) all Securities will be issued and
sold in compliance with applicable federal and state securities laws or applicable laws or regulations or any agreement or other instrument
binding upon the Company; and (vii) any Indenture, form of note under an Indenture, form of Warrant, Warrant Agreement (as defined below),
Rights Agreement (as defined below) or Unit Agreement (as defined below) will be governed by and construed in accordance with the laws
of the State of New York and will constitute a valid and binding obligation of each party thereto other than the Company.
With respect to any Securities
consisting of Common Stock, we have further assumed that the Common Stock will be authorized, executed, countersigned by the transfer
agent or registrar therefor and delivered by the Company in accordance with applicable laws and sold as contemplated in the Registration
Statement.
With respect to any Securities
consisting of any series of Preferred Stock, we have further assumed that (i) the certificate of designation, approved by appropriate
corporate action, relating to the Preferred Stock establishing the designations, preferences and rights of the class or series of Preferred
Stock (the “Certificate of Designation”), will have been authorized, executed and filed with the Secretary of State
of the State of Delaware and (ii) the Preferred Stock will be authorized, executed, countersigned by the registrar and transfer agent
therefor and delivered by the Company in accordance with the provisions of the Certificate of Designation and applicable laws and sold
as contemplated in the Registration Statement.
With respect to any Securities
consisting of any series of Debt Securities, we have further assumed that (i) the Indenture will have been authorized, executed and delivered
by the Company and an entity selected by the Company to act as the trustee (the “Trustee”), (ii) the Debt Securities
will be issued pursuant to the Indenture, (iii) all terms of the Debt Securities not provided for in the Indenture will have been established
in accordance with the provisions thereof and reflected in appropriate documentation approved by appropriate corporate action and, if
applicable, executed and delivered by the Company and authenticated by the Trustee, (iv) the Debt Securities will be authorized, executed,
authenticated, issued and delivered by the Company and authenticated by the Trustee in accordance with the provisions of the Indenture
and applicable laws and sold as contemplated in the Registration Statement and (v) if the Debt Securities are convertible into Common
Stock or Preferred Stock of the Company, (x) such Common Stock or Preferred Stock of the Company will be authorized by appropriate corporate
action, (y) the Debt Securities will be presented for conversion in accordance with the terms thereof and (z) such Common Stock or Preferred
Stock of the Company will be executed, countersigned by the transfer agent therefor and delivered by the Company upon such conversion,
in accordance with the terms of such Debt Securities.
With respect to any Securities
consisting of any series of Warrants, we have further assumed that (i) the warrant agreement (if applicable), approved by appropriate
corporate action, relating to the Warrants (the “Warrant Agreement”) to be entered into between the Company and an
entity selected by the Company to act as the warrant agent (the “Warrant Agent”) will have been authorized, executed
and delivered by the Company and the Warrant Agent and (ii) the Warrants will be authorized, executed, authenticated, issued and delivered
by the Company and the Warrant Agent in accordance with the provisions of the form of Warrant, the Warrant Agreement (if applicable)
and applicable laws and sold as contemplated in the Registration Statement.
With respect to any Securities
consisting of Rights, we have further assumed that (i) the subscription rights agreement, approved by appropriate corporate action, relating
to the Rights (the “Rights Agreement”) to be entered into between the Company and an entity selected by the Company
to act as the subscription rights agent (the “Rights Agent”) will have been authorized, executed and delivered by
the Company and the Rights Agent and (ii) the Rights will be authorized, executed and delivered by the Company and the Rights Agent in
accordance with the provisions of the Rights Agreement and applicable law and sold as contemplated in the Registration Statement.
With respect to any Securities
consisting of Units, we have further assumed that (i) the unit agreement, approved by appropriate corporate action, relating to the Units
(the “Unit Agreement”) to be entered into between the Company and an entity selected by the Company to act as the
unit agent (the “Unit Agent”) will have been authorized, executed and delivered by the Company and the Unit Agent
and (ii) the Units and each component of the Units will be authorized, executed, authenticated, issued, fully paid and non-assessable
(to the extent applicable) and delivered by the Company and the Unit Agent in accordance with the provisions of the Unit Agreement and
applicable laws and sold as contemplated in the Registration Statement and each component of the Units will constitute a valid and binding
obligation of the Company or any third party (to the extent applicable) as contemplated by the Registration Statement including the Prospectus
and the Unit Agreement.
With respect to any Securities
issuable upon exercise, exchange or conversion of other Securities, in addition to the above assumptions as applicable, we have further
assumed that such Securities issuable upon such exercise, exchange or conversion will be presented for exercise, exchange or conversion
in accordance with the terms thereof and authorized, executed, countersigned by the transfer agent or registrar thereof and delivered
by the Company upon such exercise, exchange or conversion in accordance with the terms thereof.
Based upon the foregoing
assumptions and the assumptions set forth below, and subject to the qualifications and limitations stated herein, having considered such
questions of law as we have deemed necessary as a basis for the opinions expressed below, we are of the opinion that:
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1. |
The
Common Stock, and Common Stock issuable upon exercise, exchange or conversion of other Securities, upon receipt by the Company of
such lawful consideration therefor as the Board (or an authorized committee thereof) may determine, will be validly issued, fully
paid and non-assessable shares of Common Stock of the Company. |
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2. |
The
Preferred Stock (including Preferred Stock issuable upon exercise, exchange or conversion of other Securities), upon receipt by the
Company of such lawful consideration therefor as the Board (or an authorized committee thereof) may determine, will be validly issued,
fully paid and non-assessable shares of Preferred Stock of the Company. |
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3. |
The
Debt Securities (including Debt Securities issuable upon exercise, exchange or conversion of other Securities), upon receipt by the
Company of such lawful consideration therefor as the Board (or an authorized committee thereof) may determine, will constitute valid
and binding obligations of the Company under the laws of the State of New York, enforceable against the Company in accordance with
their terms, subject to (i) applicable bankruptcy, insolvency, receivership, conservatorship, liquidation, reorganization, moratorium,
fraudulent transfer and other laws affecting the enforcement of creditors’ rights generally, and by the application of general
principles of equity (whether applied by a court in equity or at law) and the discretion of the court before which any proceedings
therefor may be brought (such principles of equity are of general application, and in applying such principles, a court may include
a covenant of good faith and fair dealing and apply concepts of reasonableness, mutuality and materiality); (ii) requirements that
a judgment for money damages rendered by a court in the United States be expressed only in U.S. dollars; and (iii) governmental authority
to limit, delay, or prohibit the making of payments outside the United States or in foreign currency or composite currency. Rights
to indemnification and contribution may also be limited by Federal and state securities laws. |
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4. |
The
Warrants, upon receipt by the Company of such lawful consideration therefor as the Board (or an authorized committee thereof) may
determine, will constitute valid and binding obligations of the Company under the laws of the State of New York, enforceable against
the Company in accordance with their terms, subject to (i) applicable bankruptcy, insolvency, receivership, conservatorship, liquidation,
reorganization, moratorium, fraudulent transfer and other laws affecting the enforcement of creditors’ rights generally, and
by the application of general principles of equity (whether applied by a court in equity or at law) and the discretion of the court
before which any proceedings therefor may be brought (such principles of equity are of general application, and in applying such
principles, a court may include a covenant of good faith and fair dealing and apply concepts of reasonableness, mutuality and materiality);
(ii) requirements that a judgment for money damages rendered by a court in the United States be expressed only in U.S. dollars; and
(iii) governmental authority to limit, delay, or prohibit the making of payments outside the United States or in foreign currency
or composite currency. Rights to indemnification and contribution may also be limited by Federal and state securities laws. |
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5. |
The
Rights, upon receipt by the Company of such lawful consideration thereof as the Board (or an authorized committee thereof) may determine,
will constitute valid and binding obligations of the Company under the laws of the State of New York, enforceable against the Company
in accordance with their terms, subject to (i) applicable bankruptcy, insolvency, receivership, conservatorship, liquidation, reorganization,
moratorium, fraudulent transfer and other laws affecting the enforcement of creditors’ rights generally, and by the application
of general principles of equity (whether applied by a court in equity or at law) and the discretion of the court before which any
proceedings therefor may be brought (such principles of equity are of general application, and in applying such principles, a court
may include a covenant of good faith and fair dealing and apply concepts of reasonableness, mutuality and materiality); (ii) requirements
that a judgment for money damages rendered by a court in the United States be expressed only in U.S. dollars; and (iii) governmental
authority to limit, delay, or prohibit the making of payments outside the United States or in foreign currency or composite currency.
Rights to indemnification and contribution may also be limited by Federal and state securities laws. |
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6. |
The
Units, upon receipt by the Company of such lawful consideration thereof as the Board (or an authorized committee thereof) may determine,
will constitute valid and binding obligations of the Company under the laws of the State of New York, enforceable against the Company
in accordance with their terms, subject to (i) applicable bankruptcy, insolvency, receivership, conservatorship, liquidation, reorganization,
moratorium, fraudulent transfer and other laws affecting the enforcement of creditors’ rights generally, and by the application
of general principles of equity (whether applied by a court in equity or at law) and the discretion of the court before which any
proceedings therefor may be brought (such principles of equity are of general application, and in applying such principles, a court
may include a covenant of good faith and fair dealing and apply concepts of reasonableness, mutuality and materiality); (ii) requirements
that a judgment for money damages rendered by a court in the United States be expressed only in U.S. dollars; and (iii) governmental
authority to limit, delay, or prohibit the making of payments outside the United States or in foreign currency or composite currency.
Rights to indemnification and contribution may also be limited by Federal and state securities laws. |
The opinions expressed
above are limited to questions arising under the law of the State of New York and the Delaware General Corporation Law. We do not express
any opinion as to the laws of any other jurisdiction.
This opinion letter is
for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it
pursuant to the applicable provisions of the Securities Act.
The opinions expressed
above are 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 opinions expressed
in this opinion letter.
We hereby consent to the
filing of this opinion letter as Exhibit 5.1 to the Registration Statement and to the reference to our firm as counsel for the Company
that has passed on the validity of the Securities appearing under the caption “Legal Matters” in the Base Prospectus forming
part of the Registration Statement or any Prospectus. In giving this consent, we do not hereby admit that we are within the category
of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
The opinions expressed
above are limited to the matters stated in this opinion letter, and no opinion is implied or may be inferred beyond those expressly stated
in this opinion letter.
Very truly yours,
/s/ White & Case LLP
JR / LKM / MA / BM
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We hereby consent to the incorporation by reference
in this Registration Statement on Form S-3 of our report dated March 10, 2023, except for the effects of the reverse recapitalization,
including the net loss per share, discussed in Note 3 and 5, as to which the date is March 21, 2024, relating to the consolidated balance
sheet of Tigo Energy, Inc. and Subsidiaries as of December 31, 2022, and the related consolidated statements of operations, convertible
preferred stock and changes in stockholders’ deficit and cash flows for the year then ended, which appears in Tigo Energy Inc.’s
Annual Report on Form 10-K for the year ended December 31, 2023. We also consent to the reference to our Firm under the caption “Experts”
in the Registration Statement.
/s/ Frank, Rimerman + Co. LLP
San Francisco, California
September 9, 2024
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We consent to the incorporation by reference in
this Registration Statement on Form S-3 of our report dated March 21, 2024, relating to the financial statements of Tigo Energy, Inc.,
appearing in the Annual Report on Form 10-K of Tigo Energy, Inc. for the year ended December 31, 2023. We also consent to the reference
to us under the heading “Experts” in such Registration Statement.
/s/ Deloitte & Touche LLP
San Jose, CA
September 9, 2024
Exhibit 107
Calculation of Filing Fee Table
Form S-3
(Form Type)
Tigo Energy, Inc.
(Exact Name of Registrant as Specified in its Charter)
Newly Registered Securities
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Security Type | |
Security Class Title | |
Fee Calculation | |
Amount Registered(5) | | |
Proposed Maximum Offering Price Per Unit | | |
Maximum Aggregate Offering Price | | |
Fee Rate | | |
Amount of Registration Fee | |
Fees to Be Paid | |
Equity | |
Common Stock, par value $0.0001 per share (“Common Stock”) | |
Rule 457(o) | |
| | (1) | |
| | (2) | |
| | (2) | |
| | | |
| | |
Fees to Be Paid | |
Equity | |
Preferred Stock | |
Rule 457(o) | |
| | (1) | |
| | (2) | |
| | (2) | |
| | | |
| | |
Fees to Be Paid | |
Equity | |
Debt Securities | |
Rule 457(o) | |
| | (1) | |
| | (2) | |
| | (2) | |
| | | |
| | |
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| |
| |
| | | |
| | | |
| | | |
| | | |
| | |
Fees to Be Paid | |
Equity/Other | |
Warrants | |
Rule 457(o) | |
| | (1) | |
| | (2) | |
| | (2) | |
| | | |
| | |
Fees to Be Paid | |
Debt | |
Rights | |
Rule 457(o) | |
| | (1) | |
| | (2) | |
| | (2) | |
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Fees to Be Paid | |
Other | |
Units | |
Rule 457(o) | |
| | (1) | |
| | (2) | |
| | (2) | |
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Fees to Be Paid | |
Unallocated (Universal) Shelf | |
N/A (Total of Above) | |
Rule 457(o) | |
| N/A | | |
| N/A | | |
$ | 100,000,000 | | |
| 0.00014760 | | |
$ | 14,760 | |
Total Offering Amounts | | |
$ | 14,760 | |
Total Fees Previously Paid | | |
$ | — | |
Total Fee Offsets | | |
$ | — | |
Net Fee Due | | |
$ | 14,760 | |
(1) |
The amount to be registered consists of up to $100,000,000 of an indeterminate amount of Common Stock, preferred stock, debt securities, warrants, rights and/or units. The securities registered also include such unspecified amounts and numbers of shares of Common Stock, preferred stock, debt securities or warrants as may be issued upon conversion of or exchange for preferred stock, debt securities, warrants, units or rights that provide for conversion or exchange. Any securities registered hereunder may be sold separately or together with other securities registered hereunder. |
(2) |
The proposed maximum per security and aggregate offering prices per class of securities 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. 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. |
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