As filed with the Securities and Exchange Commission
on November 22, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_________________
PROKIDNEY CORP.
(Exact name of registrant as specified in its
charter)
_________________
Cayman Islands |
|
98-1586514 |
(State or other jurisdiction of incorporation or organization) |
|
(IRS Employer
Identification No.) |
2000 Frontis Plaza Blvd.
Suite 250
Winston-Salem, NC 27103
(336) 999-7029
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
_________________
Bruce Culleton
Chief Executive Officer
ProKidney Corp.
2000 Frontis Plaza Blvd., Suite 250
Winston-Salem, NC 27103
(336) 999-7028
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
_________________
Copies to:
Richard
D. Truesdell, Jr
Davis
Polk & Wardwell
450 Lexington
Avenue
New York,
New York 10017
_________________
Approximate date of commencement of proposed
sale to the public: From time to time after the effective date of this registration statement as determined by the registrant.
If the only securities being registered on this
Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: ☐
If any of the securities being registered on this
Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans, check the following box: ☒
If this Form is filed to register additional securities
for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant
to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to
a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ☐ |
Accelerated filer ☐ |
Non-accelerated filer ☒ |
Smaller reporting company ☒ |
|
Emerging growth company ☒ |
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ☐
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH
DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES
THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933, AS AMENDED,
OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO
SAID SECTION 8(a), MAY DETERMINE.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE
AND MAY BE CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE
WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED
NOVEMBER 22, 2023
PROSPECTUS
ProKidney Corp.
$500,000,000
CLASS A ORDINARY SHARES
PREFERENCE SHARES
DEBT SECURITIES
WARRANTS
RIGHTS
UNITS
This prospectus will allow
us to issue, from time to time at prices and on terms to be determined at or prior to the time of the offering, up to $500,000,000 of
any combination of the securities described in this prospectus, either individually or in units. We may also offer Class A ordinary shares
or preference shares upon conversion of or exchange for the debt securities; Class A ordinary shares upon conversion of or exchange for
preference shares; or Class A ordinary shares, preference shares or debt securities upon the exercise of warrants or rights; or any combination
of these securities.
This prospectus describes
the general terms of these securities and the general manner in which these securities will be offered. We will provide you with the specific
terms of any offering in one or more supplements to this prospectus. The prospectus supplements will also describe the specific manner
in which these securities will be offered and may also supplement, update or amend information contained in this document. You should
read this prospectus and any prospectus supplement, as well as any documents incorporated by reference into this prospectus or any prospectus
supplement, carefully before you invest.
Our securities may be sold
directly by us to you, through agents designated from time to time or to or through underwriters or dealers. For additional information
on the methods of sale, you should refer to the section entitled “Plan of Distribution” in this prospectus and in the applicable
prospectus supplement. If any underwriters or agents are involved in the sale of our securities with respect to which this prospectus
is being delivered, the names of such underwriters or agents and any applicable fees, commissions or discounts and over-allotment options
will be set forth in a prospectus supplement. The price to the public of such securities and the net proceeds that we expect to receive
from such sale will also be set forth in a prospectus supplement.
Our Class A ordinary shares
are listed on the Nasdaq Capital Market under the symbol “PROK.” On November 21,
2023, the last reported sale price of our Class A ordinary shares was $1.86 per share. The
applicable prospectus supplement will contain information, where applicable, as to any other listing, if any, on the Nasdaq Capital Market
or any securities market or other securities exchange of the securities covered by the prospectus supplement. Prospective purchasers of
our securities are urged to obtain current information as to the market prices of our securities, where applicable.
Investing in our securities
involves a high degree of risk. See “Risk Factors” included in any accompanying prospectus supplement and in the documents
incorporated by reference in this prospectus for a discussion of the factors you should carefully consider before deciding to purchase
these securities.
This prospectus may not
be used to sell securities unless accompanied by a prospectus supplement.
Neither the Securities
and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus
is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2023.
TABLE OF CONTENTS
PAGE
ABOUT THIS PROSPECTUS
This prospectus is part of
a registration statement that we filed with the Securities and Exchange Commission (the “SEC”) utilizing a “shelf”
registration process. Under this shelf registration process, we may offer our Class A ordinary shares and preference shares, various series
of debt securities and/or warrants or rights to purchase any such securities, either individually or in units, in one or more offerings,
with a total value of up to $500,000,000. This prospectus provides you with a general description of the securities we may offer. Each
time we offer a type or series of securities under this prospectus, we will provide a prospectus supplement that will contain specific
information about the terms of that offering.
This prospectus does not
contain all of the information included in the registration statement. For a more complete understanding of the offering of the securities,
you should refer to the registration statement, including its exhibits. The prospectus supplement may also add, update or change information
contained or incorporated by reference in this prospectus. However, no prospectus supplement will offer a security that is not registered
and described in this prospectus at the time of its effectiveness. This prospectus, together with the applicable prospectus supplements
and the documents incorporated by reference into this prospectus, includes all material information relating to the offering of securities
under this prospectus. You should carefully read this prospectus, the applicable prospectus supplement, the information and documents
incorporated herein by reference and the additional information under the heading “Where You Can Find More Information” before
making an investment decision.
You should rely only on the
information we have provided or incorporated by reference in this prospectus or any prospectus supplement. We have not authorized anyone
to provide you with information different from that contained or incorporated by reference in this prospectus. No dealer, salesperson
or other person is authorized to give any information or to represent anything not contained or incorporated by reference in this prospectus.
You must not rely on any unauthorized information or representation. This prospectus is an offer to sell only the securities offered hereby,
but only under circumstances and in jurisdictions where it is lawful to do so. You should assume that the information in this prospectus
or any prospectus supplement is accurate only as of the date on the front of the document and that any information we have incorporated
herein by reference is accurate only as of the date of the document incorporated by reference, regardless of the time of delivery of this
prospectus or any sale of a security.
We further note that the
representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated
by reference in this prospectus were made solely for the benefit of the parties to such agreement, including, in some cases, for the purpose
of allocating risk among the parties to such agreements, and should not be deemed to be a representation, warranty or covenant to you.
Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly, such representations,
warranties and covenants should not be relied on as accurately representing the current state of our affairs.
This prospectus may not be
used to consummate sales of our securities, unless it is accompanied by a prospectus supplement. To the extent there are inconsistencies
between any prospectus supplement, this prospectus and any documents incorporated by reference, the document with the most recent date
will control.
Unless the context otherwise
requires, “ProKidney,” “PROK,” “the Company,” “we,” “us,” “our”
and similar terms refer to ProKidney Corp. and our subsidiaries.
PROSPECTUS SUMMARY
The following is a summary
of what we believe to be the most important aspects of our business and the offering of our securities under this prospectus. We urge
you to read this entire prospectus, including the more detailed consolidated financial statements, notes to the consolidated financial
statements and other information incorporated by reference from our other filings with the SEC or included in any applicable prospectus
supplement. Investing in our securities involves risks. Therefore, carefully consider the risk factors set forth in any prospectus supplements
and in our most recent annual and quarterly filings with the SEC, as well as other information in this prospectus and any prospectus supplements
and the documents incorporated by reference herein or therein, before purchasing our securities. Each of the risk factors could adversely
affect our business, operating results and financial condition, as well as adversely affect the value of an investment in our securities.
About ProKidney Corp.
We
are a clinical-stage biotechnology company with a transformative proprietary cell therapy platform capable of treating multiple chronic
kidney diseases using a patient’s own cells isolated from the patient intended for treatment. Our approach seeks to redefine the
treatment of chronic kidney disease (“CKD”), shifting the emphasis away from management of kidney failure to the preservation
of kidney function. Our lead product candidate, REACT, is a product that includes selected renal cells (“SRCs”) prepared from
a patient’s own, autologous, renal cells. REACT is injected into the patient’s own kidneys using a minimally invasive outpatient
procedure that can be repeated if necessary.
We
are currently conducting a Phase 3 development program and multiple Phase 2 clinical trials for REACT in subjects with moderate to severe
diabetic kidney disease. We have recently reported interim results of one of these Phase 2 studies. In this study of 83 participants with
CKD caused by Type 2 diabetes, REACT showed the potential to preserve kidney function for up to 30 months. We also recently completed
a Phase 1 clinical trial for REACT in subjects with congenital anomalies of the kidney and urinary tract. REACT has been generally well
tolerated by subjects in Phase 1 and 2 clinical testing with a safety profile similar to that of kidney biopsy, a standard medical procedure
used to diagnose, monitor or treat problems related to the kidney. REACT has received Regenerative Medicine Advanced Therapy designation
from the United States Food and Drug Administration.
Since
our inception, we have devoted substantially all of our resources to raising capital, organizing and staffing our company, business and
scientific planning, conducting discovery and research activities, establishing and protecting our intellectual property portfolio, preparing
and conducting clinical trials, establishing arrangements with third parties for the manufacture of component materials, and providing
general and administrative support for these operations. We do not have any product candidates approved for sale and have not generated
any revenue from product sales.
Additional Information
For additional information
related to our business and operations, please refer to the reports incorporated herein by reference, as described under the caption “Incorporation
of Documents by Reference” on page 27 of this prospectus.
Our Corporate Information
Prior
to July 11, 2022, we were a blank check company incorporated with limited liability under the laws of the Cayman Islands and formed for
the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination
with one or more businesses. We entered into a business combination agreement, dated as of January 18, 2022 with ProKidney LP (“PKLP”)
(the “Business Combination”). As a result of the closing (the “Closing”) of the Business Combination, our name
was changed from Social Capital Suvretta Holdings Corp. III to ProKidney Corp. We are organized in an umbrella partnership-C corporation
structure, and the Company’s direct assets consist of common units in the combined company (“Post-Combination ProKidney Common
Units”) and all of the issued and outstanding equity interests of ProKidney Corp. GP Limited, which became the general partner of
PKLP upon the Closing. Substantially all of the operating assets and business of the Company are held or conducted indirectly through
PKLP.
Our corporate headquarters
are located at 2000 Frontis Plaza Boulevard, Suite 250, Winston-Salem, North Carolina 27103 and our telephone number is (336) 999-7029.
We maintain a website at www.prokidney.com, to which we regularly post copies of our press releases as well as additional information
about us. The information contained on, or that can be accessed through, our website is not a part of this prospectus. We have included
our website address in this prospectus solely as an inactive textual reference.
Our Annual Reports on Form
10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and all amendments to those reports filed or furnished pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) are available free of charge through
the investor relations page of our website as soon as reasonably practicable after we electronically file such material with, or furnish
it to, the SEC.
All brand names or trademarks
appearing in this prospectus are the property of their respective holders. Use or display by us of other parties’ trademarks, trade
dress, or products in this prospectus is not intended to, and does not, imply a relationship with, or endorsements or sponsorship of,
us by the trademark or trade dress owners.
Offerings Under This Prospectus
Under this prospectus, we
may offer our Class A ordinary shares and preference shares, various series of debt securities and/or warrants or rights to purchase any
of such securities, either individually or in units, with a total value of up to $500,000,000, from time to time at prices and on terms
to be determined by market conditions at the time of the offering. This prospectus provides you with a general description of the securities
we may offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus supplement that will
describe the specific amounts, prices and other important terms of the securities, including, to the extent applicable:
| · | designation or classification; |
| · | aggregate principal amount or aggregate offering price; |
| · | maturity, if applicable; |
| · | rates and times of payment of interest or dividends, if any; |
| · | redemption, conversion or sinking fund terms, if any; |
| · | voting or other rights, if any; and |
| · | conversion or exercise prices, if any. |
The prospectus supplement
also may add, update or change information contained in this prospectus or in documents we have incorporated by reference into this prospectus.
However, no prospectus supplement will fundamentally change the terms that are set forth in this prospectus or offer a security that is
not registered and described in this prospectus at the time of its effectiveness.
We may sell the securities
directly to investors or to or through agents, underwriters or dealers. We, and our agents or underwriters, reserve the right to accept
or reject all or part of any proposed purchase of securities. If we offer securities through agents or underwriters, we will include in
the applicable prospectus supplement:
| · | the names of those agents or underwriters; |
| · | applicable fees, discounts and commissions to be paid to them; |
| · | details regarding over-allotment options, if any; and |
This prospectus may not be used to consummate
a sale of any securities unless it is accompanied by a prospectus supplement.
RISK FACTORS
An investment in our securities
involves a high degree of risk. Before making an investment decision you should carefully read and consider the risks and uncertainties
and all of the other information, documents or reports included or incorporated by reference in this prospectus, including, without limitation,
the risk factors in the section entitled “Risk Factors” in our most recent Annual Report on Form 10-K, which is on file with
the SEC and incorporated by reference in this prospectus, and our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2023,
June 30, 2023 and September 30, 2023, which are incorporated herein by reference (as such risk factors may be updated in our other filings
with the SEC pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act), as well as the risk factors set forth in any applicable
prospectus supplement and the other reports we file from time to time with the SEC that are incorporated by reference in this prospectus.
If any of the risks set forth in such “Risk Factors” disclosures actually occur, our business, financial condition, and/or
results of operations could suffer. In that case, the market price of our securities offered by this prospectus could decline, and you
may lose all or part of your investment. Additional risks and uncertainties that we do not presently know or that we currently deem immaterial
may also have a material adverse effect on our business. See “Where You Can Find More Information” included elsewhere in this
prospectus.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the information incorporated
by reference herein include “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933,
as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”). All statements, other than statements of historical facts, included in this prospectus and the information incorporated by
reference herein regarding our strategy, future operations, future financial position, future revenue, projected costs, prospects, plans,
objectives of management, potential results of our drug development efforts or trials, the effects of competition and expected market
growth are forward-looking statements. The words “anticipate,” “believe,” “contemplate,” “seeks,”
“estimate,” “expect,” “forecast,” “intend,” “may,” “plan,” “predict,”
“project,” “target,” “potential,” “will,” “would,” “could,” “should,”
“continue” and similar expressions are intended to identify forward-looking statements, although not all forward-looking statements
contain these identifying words. These forward-looking statements may include, among other things, statements about:
| · | our ability to maintain the listing of our Class A ordinary shares on the Nasdaq Capital
Market (“Nasdaq”); |
| · | our ability to manage our growth effectively; |
| · | the success, cost and timing of our product
development activities; |
| · | the potential attributes and benefits of our product candidates, and if approved, our products; |
| · | our ability to manufacture REACT, our lead product candidate; |
| · | our ability to obtain and maintain regulatory approval for our products,
and any related restrictions and limitations of any approved product; |
| · | our ability to identify, in-license or acquire additional technology; |
| · | our ability to maintain our existing license, manufacturing and supply agreements; |
| · | our reliance on third parties to conduct, supervise and monitor a certain portion of our research
and nonclinical testing and clinical trials for REACT; |
| · | our ability to compete with other companies currently marketing or engaged in the biologics
market and in the area of treatment of kidney disease, many of which have greater financial and marketing resources than us; |
| · | the size and growth potential of the markets for our products,
and the ability of each to serve those markets,
either alone or in partnership with others; |
| · | changes in applicable laws or regulations; |
| · | our estimates regarding expenses, revenue, capital requirements and needs for additional financing; |
| · | our ability to raise financing in the future; |
| · | our financial performance; |
| · | our intellectual property rights; |
| · | security breaches with respect to computer systems; |
| · | economic downturns and political and market conditions beyond our control; |
| · | the anticipated use of proceeds from this offering, if any; and |
| · | other factors details under the section titled “Risk Factors.” |
We may not actually achieve
the plans, intentions or expectations disclosed in our forward-looking statements, and you should not place undue reliance on our forward-looking
statements. Actual results or events could differ materially from the plans, intentions and expectations disclosed in the forward-looking
statements we make. We have included important factors in the cautionary statements included in this prospectus and the information incorporated
by reference herein, particularly in the “Risk Factors” sections of this prospectus and of our Annual Report on Form
10-K
for the year ended December 31, 2022, which is incorporated by reference herein, that could cause actual results or events to differ materially
from the forward-looking statements that we make. Our forward-looking statements do not reflect the potential impact of any future acquisitions,
mergers, dispositions, joint ventures or investments that we may make.
You should read this prospectus
and the information incorporated by reference herein completely and with the understanding that our actual future results may be materially
different from what we expect. Any forward-looking statement speaks only as of the date of this prospectus. We do not assume any obligation
to update any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.
USE OF PROCEEDS
Unless otherwise indicated
in the applicable prospectus supplement, we intend to use any net proceeds from the sale of securities under this prospectus, if any,
for clinical trial costs and other research and development expenses, continued investment in our drug development platform, for our pre-commercial
and commercial activities, including our commercial manufacturing facility, and for other general corporate purposes, including for working
capital, capital expenditures and general and administrative expenses. We have not determined the amounts we plan to spend on any of the
areas listed above or the timing of these expenditures. As a result, our management will have broad discretion to allocate the net proceeds,
if any, we receive in connection with securities offered pursuant to this prospectus for any purpose. Pending application of the net proceeds
as described above, we may initially invest the net proceeds in short-term, investment-grade, or interest-bearing securities.
PLAN OF DISTRIBUTION
We may offer securities under
this prospectus from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination of
these methods. We may sell the securities (1) through underwriters or dealers, (2) through agents or (3) directly to one or more purchasers,
or through a combination of such methods. We may distribute the securities from time to time in one or more transactions at:
| · | a fixed price or prices, which may be changed from time to time; |
| · | market prices prevailing at the time of sale; |
| · | prices related to the prevailing market prices; or |
Any public offering price,
dealer purchase price, discount, or commission may be changed from time to time.
We may directly solicit offers
to purchase the securities being offered by this prospectus. We may also designate agents to solicit offers to purchase the securities
from time to time and may enter into arrangements for “at-the-market,” equity line or similar transactions. We will name in
a prospectus supplement any underwriter or agent involved in the offer or sale of the securities.
If we utilize a dealer in
the sale of the securities being offered by this prospectus, we will sell the securities to the dealer, as principal. The dealer may then
resell the securities to the public at varying prices to be determined by the dealer at the time of resale.
If we utilize an underwriter
in the sale of the securities being offered by this prospectus, we will execute an underwriting agreement with the underwriter at the
time of sale, and we will provide the name of any underwriter in the prospectus supplement which 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 the 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 the underwriter may compensate those dealers in the form of discounts, concessions or commissions.
With respect to underwritten
public offerings, negotiated transactions and block trades, we will provide in the applicable prospectus supplement information regarding
any compensation we pay 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. Underwriters, dealers and agents participating in the distribution of
the securities may be deemed to be underwriters within the meaning of the Securities Act, and any discounts and commissions received by
them and any profit realized by them on resale of the securities may be deemed to be underwriting discounts and commissions. We may enter
into agreements to indemnify underwriters, dealers and agents against civil liabilities, including liabilities under the Securities Act,
or to contribute to payments they may be required to make in respect thereof.
If so indicated in the applicable
prospectus supplement, we will authorize underwriters, dealers or other persons acting as our agents to solicit offers by certain institutions
to purchase securities from us pursuant to delayed delivery contracts providing for payment and delivery on the date stated in each applicable
prospectus supplement. Each contract will be for an amount not less than, and the aggregate amount of securities sold pursuant to such
contracts shall not be less nor more than, the respective amounts stated in each applicable prospectus supplement. Institutions with whom
the contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and other institutions, but shall in all cases be subject to our approval. Delayed delivery contracts
will not be subject to any conditions except that:
| · | the purchase by an institution of the securities covered under that contract shall not at the time of
delivery be prohibited under the laws of the jurisdiction to which that institution is subject; and |
| · | if the securities are also being sold to underwriters acting as principals for their own account, the
underwriters shall have purchased such securities not sold for delayed delivery. The underwriters and other persons acting as our agents
will not have any responsibility in respect of the validity or performance of delayed delivery contracts. |
One or more firms, referred
to as “remarketing firms,” may also offer or sell the securities, if a prospectus supplement so indicates, in connection with
a remarketing arrangement upon their purchase. Remarketing firms will act as principals for their own accounts or as our agents. These
remarketing firms will offer or sell the securities in accordance with the terms of the securities. Each prospectus supplement will identify
and describe any remarketing firm and the terms of its agreement, if any, with us and will describe the remarketing firm’s compensation.
Remarketing firms may be deemed to be underwriters in connection with the securities they remarket. Remarketing firms may be entitled
under agreements that may be entered into with us to indemnification by us against certain civil liabilities, including liabilities under
the Securities Act, and may be customers of, engage in transactions with or perform services for us in the ordinary course of business.
Certain underwriters may
use this prospectus and any accompanying prospectus supplement for offers and sales related to market-making transactions in the securities.
These underwriters may act as principal or agent in these transactions, and the sales will be made at prices related to prevailing market
prices at the time of sale. Any underwriters involved in the sale of the securities may qualify as “underwriters” within the
meaning of Section 2(a)(11) of the Securities Act. In addition, the underwriters’ commissions, discounts or concessions may qualify
as underwriters’ compensation under the Securities Act and the rules of the Financial Industry Regulatory Authority, Inc.
Our Class A ordinary shares
sold pursuant to the registration statement of which this prospectus is a part will be authorized for listing and trading on the Nasdaq
Capital Market. The applicable prospectus supplement will contain information, where applicable, as to any other listing, if any, on the
Nasdaq Capital Market or any securities market or other securities exchange of the securities covered by the prospectus supplement. Underwriters
may make a market in our Class A ordinary shares but will not be obligated to do so and may discontinue any market making at any time
without notice. We can make no assurance as to the liquidity of or the existence, development or maintenance of trading markets for any
of the securities.
In order to facilitate the
offering of the securities, certain persons participating in the offering may engage in transactions that stabilize, maintain or otherwise
affect the price of the securities. This may include over-allotments or short sales of the securities, which involve the sale by persons
participating in the offering of more securities than we sold to them. In these circumstances, these persons would cover such over-allotments
or short positions by making purchases in the open market or by exercising their over-allotment option. In addition, these persons may
stabilize or maintain the price of the securities by bidding for or purchasing the applicable security in the open market or by imposing
penalty bids, whereby selling concessions allowed to dealers participating in the offering may be reclaimed if the securities sold by
them are repurchased in connection with stabilization transactions. The effect of these transactions may be to stabilize or maintain the
market price of the securities at a level above that which might otherwise prevail in the open market. These transactions may be discontinued
at any time.
The underwriters, dealers
and agents may engage in other transactions with us, or perform other services for us and our respective subsidiaries, in the ordinary
course of their business.
DESCRIPTION OF SHARES
The following is a brief
description of the material provisions of our shares. Our Class A ordinary shares are the only class of our securities registered pursuant
to Section 12 of the Exchange Act. The following description of our shares does not purport to be complete and is subject to and qualified
in its entirety by our Second Amended and Restated Memorandum and Articles of Association (our “Charter”) and the applicable
provisions of the Companies Act of the Cayman Islands, as amended (the “Companies Act”). We encourage you to read our Charter
and the applicable provisions of the Companies Act for more information.
Authorized and Outstanding
Shares
Our
Charter authorizes the issuance of up to 1,005,000,000 shares, consisting of:
| · | 500,000,000 Class A ordinary shares, par value $0.0001 per share (“Class A ordinary shares”); |
| · | 500,000,000 Class B ordinary shares, par value $0.0001 per share (“Class B ordinary shares”);
and |
| · | 5,000,000 preference shares, par value $0.0001 per share (“preference shares”). |
As of November 14, 2023,
we had 67,136,714 Class A ordinary shares and 168,297,916 Class B ordinary shares outstanding and approximately 42 holders of Class A
ordinary shares and 3 holders of Class B ordinary shares of record.
Class A Ordinary
Shares
Voting Rights
Each holder of Class A
ordinary shares is entitled to one vote for each Class A ordinary share held of record by such holder on all matters on which shareholders
generally are entitled to vote. The holders of the Class A ordinary shares do not have cumulative voting rights in the appointment
of directors. Generally, all matters to be voted on by shareholders must be approved by a resolution passed by the holders of not less
than a simple majority of ordinary shares entitled to vote in person or represented by proxy, with Class A shareholders and Class B
shareholders voting together as a single class. Notwithstanding the foregoing, the holders of the outstanding Class A ordinary shares
are entitled to vote separately upon any amendment to the Charter (including by merger, consolidation, reorganization or similar event)
that would alter or change the powers, preferences or special rights of such Class A ordinary shares in a manner that has an adverse
effect upon such rights.
Dividend Rights
Subject to preferences that
may be applicable to any outstanding preference shares, the holders of Class A ordinary shares are entitled to receive ratably such
dividends, if any, as may be declared from time to time by our board of directors (“Board”) out of funds legally available
therefor. All dividends are subject to certain restrictions under Cayman Islands law, namely that we may only pay dividends out of profits
or share premium account, and provided always that, in no circumstances may a dividend be paid if this would result in us being unable
to pay our debts as they fall due in the ordinary course of business.
Rights upon Liquidation,
Dissolution and Winding-Up
In
the event of any voluntary or involuntary liquidation, dissolution or winding up of our affairs, the holders of our Class A ordinary
shares are entitled to share ratably in all assets remaining after payment of our debts and other liabilities, subject to prior distribution
rights of preference shares or any class or series of shares having a preference over our Class A ordinary shares, then outstanding,
if any.
Preemptive or Other
Rights
The
holders of our Class A ordinary shares have no preemptive or conversion rights or other subscription rights (other than in connection
with certain issuances of common units under the second amended and restated limited
partnership agreement
of ProKidney LP (the “Second Amended and Restated ProKidney Limited Partnership Agreement”)).
There are no redemption or sinking fund provisions applicable to our Class A ordinary shares. The rights, preferences and privileges
of holders of our Class A ordinary shares will be subject to those of the holders of any preference shares we may issue in the future.
Class B Ordinary
Shares
Voting Rights
Each
holder of our Class B ordinary shares is entitled to one vote for each Class B ordinary share held of record by such holder
on all matters on which shareholders generally are entitled to vote. The holders of our Class B ordinary shares do not have cumulative
voting rights in the election of directors. Generally, all matters to be voted on by shareholders must be approved by a majority of the
votes entitled to be cast by all shareholders present in person or represented by proxy, with Class A shareholders and Class B
shareholders voting together as a single class. Notwithstanding the foregoing, the holders of our outstanding Class B ordinary shares
are entitled to vote separately upon any amendment to the Charter (including by merger, consolidation, reorganization or similar event)
that would alter or change the powers, preferences or special rights of such Class B ordinary shares in a manner that has an adverse
effect upon such rights.
Dividend Rights
The
holders of our Class B ordinary shares will not participate in any dividends declared by our Board.
Rights upon Liquidation,
Dissolution and Winding-Up
In
the event of any voluntary or involuntary liquidation, dissolution or winding up of our affairs, the holders of our Class B ordinary
shares are entitled to a ratable amount equal to the capital paid up on such Class B ordinary shares of all assets remaining after
payment of our debts and other liabilities, subject to prior distribution rights of preference shares or any class or series of shares
having a preference over our Class B ordinary shares, then outstanding, if any. Our Class B ordinary shares shall not carry
any other right to participate in our profits or assets.
Preemptive or Other Rights
The
holders of our Class B ordinary shares do not have preemptive, subscription, redemption or conversion rights. There will be no redemption
or sinking fund provisions applicable to our Class B ordinary shares.
Issuance and Forfeiture
of Class B Ordinary Shares
In
the event that any of our outstanding Class B ordinary shares cease to be held directly or indirectly by a holder of an equal amount
of units of ProKidney pursuant to the Second Amended and Restated ProKidney Limited Partnership
Agreement (the “Post-Combination ProKidney Common Units”), such share will automatically be transferred to us for no
consideration and thereupon will be retired. We will not issue additional Class B ordinary shares other than in connection with the
valid issuance or transfer of Post-Combination ProKidney Common Units in accordance with our governing documents.
Preference Shares
Our
Charter provides that the Board has the authority, without further action by the holders of our ordinary shares, to establish one or more
series of preference shares where issue of such series of preference shares is considered by the Board not to have an adverse effect upon
rights attached to our Class A ordinary shares and Class B ordinary shares. Preference shares may be issued from time to time
in one or more series of any number of shares, provided that the aggregate number of shares issued shall not exceed the total number of
preference shares authorized, and with such powers, including voting powers, if any, and the designations, preferences and relative, participating,
optional or other special rights, if any, and any qualifications, limitations or restrictions thereof, all as shall be stated and expressed
in the resolution or resolutions providing for the designation and issue of such preference shares from time to time adopted by the Board
pursuant to authority so to do which is expressly vested in the Board. The powers, including
voting powers, if any,
preferences and relative, participating, optional and other special rights of each series of preference shares, and the qualifications,
limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding.
The
issuance of preference shares may have the effect of delaying, deferring or preventing a change in control of ProKidney without further
action by the shareholders. Additionally, the issuance of preference shares may adversely affect the holders of our ordinary shares by
restricting dividends on our Class A ordinary shares, diluting the voting power of our Class A ordinary shares and Class B
ordinary shares or subordinating the liquidation rights of our Class A ordinary shares and Class B ordinary shares. As a result
of these or other factors, the issuance of preference shares could have an adverse impact on the market price of our Class A ordinary
shares. At present, we have no plans to issue any preference shares.
Register of Members
Under
Cayman Islands law, the Company must keep a register of members and there will be entered therein:
| · | the names and addresses of the members, a statement of the shares
held by each member, and of the amount paid or agreed to be considered as paid, on the shares of each member and the voting rights of
shares and if so, whether such voting rights are conditional; |
| · | the date on which the name of any person was entered on the register
as a member; and |
| · | the date on which any person ceased to be a member. |
Under
Cayman Islands law, the register of members of our company is prima facie evidence of the matters set out therein (i.e., the register
of members will raise a presumption of fact on the matters referred to above unless rebutted) and a member registered in the register
of members will be deemed as a matter of Cayman Islands law to have legal title to the shares as set against its name in the register
of members. Upon the closing of this offering, the register of members will be immediately updated to reflect the issue of shares by us.
Once our register of members has been updated, the shareholders recorded in the register of members will be deemed to have legal title
to the shares set against their name. However, there are certain limited circumstances where an application may be made to a Cayman Islands
court for a determination on whether the register of members reflects the correct legal position. Further, the Cayman Islands court has
the power to order that the register of members maintained by a company should be rectified where it considers that the register of members
does not reflect the correct legal position. If an application for an order for rectification of the register of members were made in
respect of our ordinary shares, then the validity of such shares may be subject to re-examination by a Cayman Islands court.
Certain Anti-Takeover
Provisions of the Charter
Our
Charter contains provisions that could have the effect of rendering more difficult, delaying, or preventing an acquisition deemed undesirable
by the Board. These provisions could also make it difficult for shareholders to take certain actions, including appointing directors who
are not nominated by the members of the Board or taking other corporate actions, including effecting changes in our management. For instance,
our Charter does not provide for cumulative voting in the appointment of directors and does provide
for a classified board of directors with three-year staggered terms, which could delay the ability of shareholders to change the membership
of a majority of the Board. The Board is empowered to appoint a director to fill a vacancy created by the expansion of the Board or the
resignation, death, or removal of a director in certain circumstances; and our advance notice provisions in our Charter requires that
shareholders must comply with certain procedures in order to nominate candidates to the Board or to propose matters to be acted upon at
a shareholders’ meeting.
Our
authorized but unissued ordinary shares and preference shares are available for future issuances without shareholder approval and could
be utilized for a variety of corporate purposes, including future offerings to raise additional capital, acquisitions and employee benefit
plans. The existence of authorized but unissued and unreserved ordinary shares and preference shares could render more difficult or discourage
an attempt to obtain control of ProKidney by means of a proxy contest, tender offer, merger or otherwise.
Certain Differences
in Corporate Law
Cayman
Islands companies are governed by the Companies Act. The Companies Act is modeled on English Law but does not follow recent English Law
statutory enactments, and differs from laws applicable to United States corporations and their shareholders. Set forth below is a summary
of the material differences between the provisions of the Companies Act applicable to us and the laws applicable to companies incorporated
in the United States and their shareholders.
Mergers and Similar
Arrangements
In
certain circumstances, the Companies Act allows for mergers or consolidations between two Cayman Islands companies, or between a Cayman
Islands exempted company and a company incorporated in another jurisdiction (provided that is facilitated by the laws of that other
jurisdiction).
Where
the merger or consolidation is between two Cayman Islands companies, the directors of each company must approve a written plan of merger
or consolidation containing certain prescribed information. That plan or merger or consolidation must then be authorized by either (a) a
special resolution (usually a majority of 66 2/3% in value of the voting shares voted at a shareholder meeting) of the shareholders of
each company; or (b) such other authorization, if any, as may be specified in such constituent company’s memorandum and articles
of association. No shareholder resolution is required for a merger between a parent company (i.e., a company that holds issued shares
that together represent at least 90% of the votes at a general meeting of the subsidiary company) and its subsidiary company. The consent
of each holder of a fixed or floating security interest of a constituent company must be obtained, unless the court waives such requirement.
If the Cayman Islands Registrar of Companies is satisfied that the requirements of the Companies Act (which includes certain other formalities)
have been complied with, the Registrar of Companies will register the plan of merger or consolidation.
Where
the merger or consolidation involves a foreign company, the procedure is similar, save that with respect to the foreign company, the directors
of the Cayman Islands exempted company are required to make a declaration to the effect that, having made due enquiry, they are of the
opinion that the requirements set out below have been met: (i) that the merger or consolidation is permitted or not prohibited by
the constitutional documents of the foreign company and by the laws of the jurisdiction in which the foreign company is incorporated,
and that those laws and any requirements of those constitutional documents have been or will be complied with; (ii) that no petition
or other similar proceeding has been filed and remains outstanding or order made or resolution adopted to wind up or liquidate the foreign
company in any jurisdictions; (iii) that no receiver, trustee, administrator or other similar person has been appointed in any jurisdiction
and is acting in respect of the foreign company, its affairs or its property or any part thereof; and (iv) that no scheme, order,
compromise or other similar arrangement has been entered into or made in any jurisdiction whereby the rights of creditors of the foreign
company are and continue to be suspended or restricted.
Where
the surviving company is the Cayman Islands exempted company, the directors of the Cayman Islands exempted company are further required
to make a declaration to the effect that, having made due enquiry, they are of the opinion that the requirements set out below have been
met: (i) that the foreign company is able to pay its debts as they fall due and that the merger or consolidation is bona fide and
not intended to defraud unsecured creditors of the foreign company; (ii) that in respect of the transfer of any security interest
granted by the foreign company to the surviving or consolidated company (a) consent or approval to the transfer has been obtained,
released or waived; (b) the transfer is permitted by and has been approved in accordance with the constitutional documents of the
foreign company; and (c) the laws of the jurisdiction of the foreign company with respect to the transfer have been or will be complied
with; (iii) that the foreign company will, upon the merger or consolidation becoming effective, cease to be incorporated, registered
or exist under the laws of the relevant foreign jurisdiction; and (iv) that there is no other reason why it would be against the
public interest to permit the merger or consolidation.
Moreover,
Cayman Islands law has separate statutory provisions that facilitate the reconstruction or amalgamation of companies in certain circumstances,
schemes of arrangement will generally be more suited for complex mergers or other transactions involving widely held companies, commonly
referred to in the Cayman Islands as a “scheme of arrangement” which may be tantamount to a merger. In the event that a merger
was sought pursuant to a scheme of arrangement (the procedures for which are more rigorous and take longer to complete than the procedures
typically
required to consummate
a merger in the United States), the arrangement in question must be approved by (i) in respect of shareholders, 75% in value of the shareholders
or each class of shareholder who attend and vote, either in person or by proxy, at a meeting or meetings convened for that purpose; or
(ii) in respect of creditors, a majority in number representing 75% in value of creditors or each class of creditors who attend and vote,
either in person or by proxy, at a meeting or meetings convened for that purpose. The
convening of the meetings and subsequently the terms of the arrangement must be sanctioned by the Grand Court of the Cayman Islands. While
a dissenting shareholder would have the right to express to the court the view that the transaction should not be approved, the court
can be expected to approve the arrangement if it satisfies itself that:
| · | we are not proposing to act illegally or beyond the scope of our
corporate authority and the statutory provisions as to majority vote have been complied with; |
| · | the shareholders have been fairly represented at the meeting in
question; |
| · | the arrangement is such as a businessman would reasonably approve;
and |
| · | the arrangement is not one that would more properly be sanctioned
under some other provision of the Cayman Islands Companies Act or that would amount to a “fraud on the minority.” |
If
a scheme of arrangement or takeover offer (as described below) is approved, any dissenting shareholder would have no rights comparable
to appraisal rights (providing rights to receive payment in cash for the judicially determined value of the shares), which would otherwise
ordinarily be available to dissenting shareholders of United States corporations.
Squeeze-out Provisions
When
a takeover offer is made and accepted by holders of 90% of the shares to whom the offer relates within four months, the offeror may, within
a two-month period, require the holders of the remaining shares to transfer such shares on the terms of the offer. An objection
can be made to the Grand Court of the Cayman Islands, but this is unlikely to succeed unless there is evidence of fraud, bad faith, collusion
or inequitable treatment of the shareholders.
Further,
transactions similar to a merger, reconstruction and/or an amalgamation may in some circumstances be achieved through means other than
these statutory provisions, such as a share capital exchange, asset acquisition or control, or through contractual arrangements of an
operating business.
Shareholders’
Suits
Our
Cayman Islands counsel is not aware of any reported class action having been brought in a Cayman Islands court. Derivative actions have
been brought in the Cayman Islands courts, and the Cayman Islands courts have confirmed the availability for such actions. In most cases,
we will be the proper plaintiff in any claim based on a breach of duty owed to us, and a claim against (for example) our officers or directors
usually may not be brought by a shareholder. However, based both on Cayman Islands authorities and on English authorities, which would
in all likelihood be of persuasive authority and be applied by a court in the Cayman Islands, exceptions to the foregoing principle apply
in circumstances in which:
| · | a company is acting, or proposing to act, illegally or beyond the
scope of its authority; |
| · | the act complained of, although not beyond the scope of the authority,
could be effected if duly authorized by more than the number of votes which have actually been obtained; or |
| · | those who control the company are perpetrating a “fraud on
the minority.” |
A
shareholder may have a direct right of action against us where the individual rights of that shareholder have been infringed or are about
to be infringed.
Enforcement of Civil
Liabilities
The
Cayman Islands has a different body of corporate and securities laws as compared to the United States and provides less protection to
investors. Additionally, Cayman Islands companies may not have standing to sue before the Federal courts of the United States.
We
have been advised by our Cayman Islands legal counsel that the courts of the Cayman Islands are unlikely (i) to recognize or enforce
against us judgments of courts of the United States predicated upon the civil liability provisions of the federal securities laws of
the United States or any state; and (ii) in original actions brought in the Cayman Islands, to impose liabilities against us predicated
upon the civil liability provisions of the federal securities laws of the United States or any state, so far as the liabilities imposed
by those provisions are penal in nature. In those circumstances, although there is no statutory enforcement in the Cayman Islands of
judgments obtained in the United States, the courts of the Cayman Islands will recognize and enforce a foreign money judgment of a foreign
court of competent jurisdiction without retrial on the merits based on the principle that a judgment of a competent foreign court imposes
upon the judgment debtor an obligation to pay the sum for which judgment has been given provided certain conditions are met. For a foreign
judgment to be enforced in the Cayman Islands, such judgment must be final and conclusive and for a liquidated sum, and must not be in
respect of taxes or a fine or penalty, inconsistent with a Cayman Islands judgment in respect of the same matter, impeachable on the
grounds of fraud or obtained in a manner, and or be of a kind the enforcement of which is, contrary to natural justice or the public
policy of the Cayman Islands (awards of punitive or multiple damages may well be held to be contrary to public policy). A Cayman Islands
court may stay enforcement proceedings if concurrent proceedings are being brought elsewhere.
Special Considerations
for Exempted Companies
We
are an exempted company with limited liability (meaning our public shareholders have no liability, as members of the company, for liabilities
of the company over and above the amount paid for their shares) under the Companies Act. The Companies Act distinguishes between ordinary
resident companies and exempted companies. Any company that is registered in the Cayman Islands but conducts business mainly outside of
the Cayman Islands may apply to be registered as an exempted company. The requirements for an exempted company are essentially the same
as for an ordinary company except for the exemptions and privileges listed below:
| · | annual reporting requirements are minimal and consist mainly of
a statement that the company has conducted its operations mainly outside of the Cayman Islands and has complied with the provisions of
the Companies Act; |
| · | an exempted company’s register of members is not open to inspection; |
| · | an exempted company does not have to hold an annual shareholder
meeting; |
| · | an exempted company may issue negotiable or bearer shares or shares
with no par value; |
| · | an exempted company may obtain an undertaking against the imposition
of any future taxation (such undertakings are usually given for 30 years in the first instance); |
| · | an exempted company may register by way of continuation in another
jurisdiction and be deregistered in the Cayman Islands; |
| · | an exempted company may register as a limited duration company;
and |
| · | an exempted company may register as a segregated portfolio
company. |
Transfer Agent and Registrar
The transfer agent and registrar
for our ordinary shares is Continental Stock Transfer & Trust Company.
Stock Exchange Listing
Our Class A ordinary shares
are listed for quotation on the Nasdaq Capital Market, under the symbol “PROK.”
DESCRIPTION OF DEBT SECURITIES
The following description,
together with the additional information we include in any applicable prospectus supplements, summarizes the material terms and provisions
of the debt securities that we may offer under this prospectus. While the terms we have summarized below will apply generally to any future
debt securities we may offer pursuant to this prospectus, we will describe the particular terms of any debt securities that we may offer
in more detail in the applicable prospectus supplement. If we so indicate in a prospectus supplement, the terms of any debt securities
offered under such prospectus supplement may differ from the terms we describe below, and to the extent the terms set forth in a prospectus
supplement differ from the terms described below, the terms set forth in the prospectus supplement shall control.
The debt securities (“Debt
Securities”) will be either senior debt securities (“Senior Debt Securities”) or subordinated debt securities (“Subordinated
Debt Securities”). The Senior Debt Securities and the Subordinated Debt Securities will be issued under separate indentures among
us, the subsidiary guarantors of such Debt Securities, if any, each a Subsidiary Guarantor, if applicable, and a trustee to be determined,
the Trustee. Senior Debt Securities will be issued under a senior indenture (“Senior Indenture”) and Subordinated Debt Securities
will be issued under a subordinated indenture (“Subordinated Indenture” and together with the Senior Indenture, the “Indentures”).
The form of each Indenture has been filed with the SEC as an exhibit to the registration statement of which this prospectus is a part,
and you should read the Indentures for provisions that may be important to you.
The Indentures will be qualified
under the Trust Indenture Act of 1939, as in effect on the date of the indenture. We use the term “debenture trustee” to refer
to either the trustee under the senior indenture or the trustee under the subordinated indenture, as applicable. The following summaries
of material provisions of the Debt Securities are subject to, and qualified in their entirety by reference to, all the provisions of the
indenture applicable to a particular series of debt securities.
General
The Debt Securities may be
issued from time to time in one or more series and may be denominated and payable in foreign currencies or units based on or relating
to foreign currencies. Neither Indenture limits the amount of Debt Securities that may be issued thereunder, and each Indenture provides
that the specific terms of the Debt Securities shall be set forth in, or determined pursuant to, an authorizing resolution and/or a supplemental
indenture, if any, relating to such series.
The applicable prospectus
supplement will contain, where applicable, the following terms of and other information relating to the Debt Securities:
| · | the title of the Debt Securities; |
| · | the aggregate principal amount and any limit on the aggregate principal amount of the Debt Securities; |
| · | the currency or units based on or relating to currencies in which Debt Securities are denominated and the currency or units in which
principal or interest or both will or may be payable; |
| · | whether we will issue the series of Debt Securities in global form, the terms of any global securities and who the depositary will
be; |
| · | whether or not the Debt Securities will be secured or unsecured, and the terms of any secured debt; |
| · | our right, if any, to defer payment of interest and the maximum length of any such deferral period; |
| · | whether the Indenture will restrict our ability to pay dividends, or will require us to maintain any asset ratios or reserves; |
| · | whether we will be restricted from incurring any additional indebtedness; |
| · | a discussion on any material or special U.S. federal income tax considerations applicable to Debt Securities; |
| · | the denominations in which we will issue Debt Securities, if other than denominations of $1,000 and any integral multiple thereof; |
| · | whether the Debt Securities are Senior Debt Securities or Subordinated Debt Securities and, if Subordinated Debt Securities, the related
subordination terms; |
| · | whether any Subsidiary Guarantor will provide a Subsidiary Guarantee of the Debt Securities; |
| · | each date on which the principal of the Debt Securities will be payable; |
| · | the interest rate, which may be fixed or variable, or the method for determining the rate and date interest will begin to accrue,
that the Debt Securities will bear and the interest payment dates for the Debt Securities; |
| · | each place where payments on the Debt Securities will be payable; |
| · | any terms upon which the Debt Securities may be redeemed, in whole or in part, at our option; |
| · | any sinking fund or other provisions that would obligate us to redeem or otherwise repurchase the Debt Securities; |
| · | the portion of the principal amount, if less than all, of the Debt Securities that will be payable upon declaration of acceleration
of the Maturity of the Debt Securities; |
| · | whether the Debt Securities are defeasible; |
| · | any addition to or change in the events of default; |
| · | whether the Debt Securities are convertible into our Class A ordinary shares and, if so, the terms and conditions upon which conversion
will be effected, including the initial conversion price or conversion rate and any adjustments thereto and the conversion period; |
| · | any addition to or change in the covenants in the Indenture applicable to the Debt Securities; |
| · | any other specific terms, preferences, rights or limitations of, or restrictions on, the Debt Securities; and |
| · | any other terms of the Debt Securities not inconsistent with the provisions of the Indenture. |
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.
Debt Securities, including
any Debt Securities that provide for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration
of the maturity thereof, or original issue discount securities (“Original Issue Discount Securities”), may be sold at a substantial
discount below their principal amount. Special United States federal income tax considerations applicable to Original Issue Discount Securities
may be described in the applicable prospectus supplement. In addition, special United States federal income tax or other considerations
applicable to any Debt Securities that are denominated in a currency or currency unit other than United States dollars may be described
in the applicable prospectus supplement.
Conversion or Exchange Rights
We will set forth in the
prospectus supplement the terms, if any, on which Debt Securities may be convertible into or exchangeable for our Class A ordinary shares
or our other securities. We will include provisions as to whether conversion or exchange is mandatory, at the option of the holder or
at our option. We may include provisions pursuant to which the number of our Class A ordinary shares or our other securities that the
holders of the series of Debt Securities receive would be subject to adjustment.
Consolidation, Merger or Sale; No Protection
in Event of a Change of Control or Highly Leveraged Transaction
The Indentures do not contain
any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all or substantially
all of our assets. However, any successor to or acquirer of such assets must assume all of our obligations under the Indentures or the
Debt Securities, as appropriate, satisfactory in form to the debenture trustee.
Unless we state otherwise
in the applicable prospectus supplement, the Debt Securities will not contain any provisions that may afford holders of the Debt Securities
protection in the event we have a change of control or in the event of a highly leveraged transaction (whether or not such transaction
results in a change of control), which could adversely affect holders of Debt Securities.
Events of Default Under the Indenture
The following are events
of default under the Indentures with respect to any series of Debt Securities that we may issue:
| · | if we fail to pay interest when due and our failure continues for 90 days and the time for payment has
not been extended or deferred; |
| · | if we fail to pay the principal, or premium, if any, when due and the time for payment has not been extended
or delayed; |
| · | if we fail to observe or perform any other covenant set forth in the Debt Securities of such series or
the applicable Indentures, other than a covenant specifically relating to and for the benefit of holders of another series of Debt Securities,
and our failure continues for 90 days after we receive written notice from the debenture trustee or holders of not less than a majority
in aggregate principal amount of the outstanding Debt Securities of the applicable series; and |
| · | if specified events of bankruptcy, insolvency or reorganization occur as to us. |
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 an event of default may constitute
an event of default under any bank credit agreements we may have in existence from time to time. In addition, the occurrence of certain
events of default or acceleration under any applicable Indenture may constitute an event of default under certain of our other indebtedness
outstanding from time to time.
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 a majority in principal amount of the outstanding Debt Securities of that series may, by a notice in writing to us (and to the debenture
trustee if given by the holders), declare to be due and payable immediately the principal (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) of and premium and accrued
and unpaid interest, if any, on all Debt Securities of that series. Before a judgment or decree for payment of the money due has been
obtained with respect to Debt Securities of any series, the holders of a majority in principal amount of the outstanding Debt Securities
of that series (or, at a meeting of holders of such series at which a quorum is present, the holders of a majority in principal amount
of the Debt Securities) default, other than the non-payment of accelerated principal, premium, if any, and interest, if any, with respect
to Debt Securities of that series, have been cured or waived as provided in the applicable Indenture (including payments or deposits in
respect of principal, premium or interest that had become due other than as a result of such acceleration). 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.
Subject to the terms of the
Indentures, if an event of default under an Indenture shall occur and be continuing, the debenture trustee will be under no obligation
to exercise any of its rights or powers under such Indenture at the request or direction of any of the holders of the applicable series
of debt securities, unless such holders have offered the debenture trustee reasonable indemnity. The holders of a majority in principal
amount of the outstanding Debt Securities of any series will have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the debenture trustee, or exercising any trust or power conferred on the debenture trustee, with respect to
the Debt Securities of that series, provided that:
| · | the direction so given by the holder is not in conflict with any law or the applicable Indenture; and |
| · | subject to its duties under the Trust Indenture Act, the debenture trustee need not take any action that
might involve it in personal liability or might be unduly prejudicial to the holders not involved in the proceeding. |
A holder of the Debt Securities
of any series will only have the right to institute a proceeding under the Indentures or to appoint a receiver or trustee, or to seek
other remedies if:
| · | the holder previously has given written notice to the debenture trustee of a continuing event of default
with respect to that series; |
| · | the holders of at least a majority in aggregate principal amount of the outstanding Debt Securities of
that series have made written request, and such holders have offered reasonable indemnity to the debenture trustee to institute the proceeding
as trustee; and |
| · | the debenture trustee does not institute the proceeding, and does not receive from the holders of a majority
in aggregate principal amount of the outstanding Debt Securities of that series (or at a meeting of holders of such series at which a
quorum is present, the holders of a majority in principal amount of the Debt Securities of such series represented at such meeting) other
conflicting directions within 60 days after the notice, request and offer. |
These limitations do not
apply to a suit instituted by a holder of Debt Securities if we default in the payment of the principal, premium, if any, or interest
on, the Debt Securities. We will periodically file statements with the applicable debenture trustee regarding our compliance with specified
covenants in the applicable Indenture.
Modification of Indenture; Waiver
The debenture trustee and
we may change the applicable Indenture without the consent of any holders with respect to specific matters, including:
| · | to fix any ambiguity, defect or inconsistency in the Indenture; and |
| · | to change anything that does not materially adversely affect the interests of any holder of Debt Securities
of any series issued pursuant to such Indenture. |
In addition, under the Indentures,
the rights of holders of a series of Debt Securities may be changed by us and the debenture trustee with the written consent of the holders
of at least a majority in aggregate principal amount of the outstanding Debt Securities of each series (or, at a meeting of holders of
such series at which a quorum is present, the holders of a majority in principal amount of the Debt Securities of such series represented
at such meeting) that is affected. However, the debenture trustee and we may make the following changes only with the consent of each
holder of any outstanding Debt Securities affected:
| · | extending the fixed maturity of the series of debt securities; |
| · | reducing the principal amount, reducing the rate of or extending the time of payment of interest, or any
premium payable upon the redemption of any debt securities; |
| · | reducing the principal amount of discount securities payable upon acceleration of maturity; |
| · | making the principal of or premium or interest on any debt security payable in currency other than that
stated in the debt security; or |
| · | reducing the percentage of debt securities, the holders of which are required to consent to any amendment
or waiver. |
Except for certain specified
provisions, the holders of at least a majority in principal amount of the outstanding Debt Securities of any series (or, at a meeting
of holders of such series at which a quorum is present, the holders of a majority in principal amount of the Debt Securities of such
series represented at such meeting) 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 or in respect of a covenant
or provision, which cannot be modified or amended without the consent of the holder of each outstanding debt security of the series affected;
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.
Discharge
Each Indenture provides that
we can elect to be discharged from our obligations with respect to one or more series of debt securities, except for obligations to:
| · | register the transfer or exchange of Debt Securities of the series; |
| · | replace stolen, lost or mutilated Debt Securities of the series; |
| · | duly and punctually pay or cause to be paid amounts owing with respect to the Debt Securities; |
| · | maintain paying agencies; |
| · | hold monies for payment in trust; |
| · | compensate and indemnify the trustee; and |
| · | appoint any successor trustee. |
In order to exercise our
rights to be discharged with respect to a series, we must deposit with the trustee money or government obligations sufficient to pay all
the principal of, the premium, if any, and interest on, the Debt Securities of the series on the dates payments are due.
Form, Exchange, and Transfer
We will issue the Debt Securities
of each series only in fully registered form without coupons and, unless we otherwise specify in the applicable prospectus supplement,
in denominations of $1,000 and any integral multiple thereof. The Indentures provide that we may issue Debt Securities of a series in
temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository Trust Company
or another depositary named by us and identified in a prospectus supplement with respect to that series.
At the option of the holder,
subject to the terms of the Indentures and the limitations applicable to global securities described in the applicable prospectus supplement,
the holder of the Debt Securities of any series can exchange the Debt Securities for other Debt Securities of the same series, in any
authorized denomination and of like tenor and aggregate principal amount.
Subject to the terms of the
Indentures and the limitations applicable to global securities set forth in the applicable prospectus supplement, holders of the Debt
Securities may present the Debt Securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed
thereon duly executed if so required by us or the security registrar, at the office of the security registrar or at the office of any
transfer agent designated by us for this purpose. Unless otherwise provided in the Debt Securities that the holder presents for transfer
or exchange or in the applicable Indenture, we will make no service charge for any registration of transfer or exchange, but we may require
payment of any taxes or other governmental charges.
We will name in the applicable
prospectus supplement the security registrar, and any transfer agent in addition to the security registrar, that we initially designate
for any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer agent or approve
a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer agent in each place
of payment for the Debt Securities of each series.
If we elect to redeem the
Debt Securities of any series, we will not be required to:
| · | issue, register the transfer of, or exchange any Debt Securities of that series during a period beginning
at the opening of 15 business days before the day of mailing of a notice of redemption of any Debt Securities that may be selected for
redemption and ending at the close of business on the day of the mailing; or |
| · | register the transfer of or exchange any Debt Securities so selected for redemption, in whole or in part,
except the unredeemed portion of any Debt Securities we are redeeming in part. |
Information Concerning the Debenture Trustee
The debenture trustee, other
than during the occurrence and continuance of an event of default under the applicable Indenture, undertakes to perform only those duties
as are specifically set forth in the applicable Indenture.
Upon an event of default under an Indenture, the
debenture trustee under such Indenture must use the same degree of care as a prudent person would exercise or use in the conduct of his
or her own affairs. Subject to this provision, the debenture trustee is under no obligation to exercise any of the powers given it by
the Indentures at the request of any holder of Debt Securities unless it is offered reasonable security and indemnity against the costs,
expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate
in the applicable prospectus supplement, we will make payment of the interest on any Debt Securities on any interest payment date to the
person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular
record date for the interest.
We will pay principal of
and any premium and interest on the Debt Securities of a particular series at the office of the paying agents designated by us, except
that unless we otherwise indicate in the applicable prospectus supplement, will we make interest payments by check which we will mail
to the holder. Unless we otherwise indicate in a prospectus supplement, we will designate the corporate trust office of the debenture
trustee in the City of New York as our sole paying agent for payments with respect to Debt Securities of each series. We will name in
the applicable prospectus supplement any other paying agents that we initially designate for the Debt Securities of a particular series.
We will maintain a paying agent in each place of payment for the Debt Securities of a particular series.
All money we pay to a paying
agent or the debenture trustee for the payment of the principal of or any premium or interest on any Debt Securities which remains unclaimed
at the end of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the
security thereafter may look only to us for payment thereof.
Governing Law
The
Indentures and the Debt Securities will be governed by and construed in accordance with the laws of the State of New York, except to the
extent that the Trust Indenture Act is applicable.
Subordination of Subordinated Debt Securities
Our obligations pursuant
to any subordinated Debt Securities will be subordinate and junior in priority of payment to certain of our other indebtedness to the
extent described in a prospectus supplement. The Indentures do not limit the amount of indebtedness we may incur. The Indentures also
do not limit us from issuing any other secured or unsecured debt.
DESCRIPTION OF WARRANTS
General
We may issue warrants to
purchase our Class A ordinary shares, preference shares and/or Debt Securities in one or more series together with other securities or
separately, as described in the applicable prospectus supplement. Below is a description of certain general terms and provisions of the
warrants that we may offer. Particular terms of the warrants will be described in the warrant agreements and the prospectus supplement
relating to the warrants.
The applicable prospectus
supplement will contain, where applicable, the following terms of and other information relating to the warrants:
| · | the specific designation and aggregate number of, and the price at which we will issue, the warrants; |
| · | the currency or currency units in which the offering price, if any, and the exercise price are payable; |
| · | the designation, amount and terms of the securities purchasable upon exercise of the warrants; |
| · | if applicable, the exercise price for our Class A ordinary shares and the number of Class A ordinary shares
to be received upon exercise of the warrants; |
| · | if applicable, the exercise price for our preference shares, the number of preference shares to be received
upon exercise, and a description of that series of our preference shares; |
| · | if applicable, the exercise price for our Debt Securities, the amount of Debt Securities to be received
upon exercise, and a description of that series of Debt Securities; |
| · | the date on which the right to exercise the warrants will begin and the date on which that right will
expire or, if you may not continuously exercise the warrants throughout that period, the specific date or dates on which you may exercise
the warrants; |
| · | whether the warrants will be issued in fully registered form or bearer form, in definitive or global form
or in any combination of these forms, although, in any case, the form of a warrant included in a unit will correspond to the form of the
unit and of any security included in that unit; |
| · | any applicable material U.S. federal income tax consequences; |
| · | the identity of the warrant agent for the warrants and of any other depositaries, execution or paying
agents, transfer agents, registrars or other agents; |
| · | the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants
on any securities exchange; |
| · | if applicable, the date from and after which the warrants and the Class A ordinary shares, preference
shares and/or Debt Securities will be separately transferable; |
| · | if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
| · | information with respect to book-entry procedures, if any; |
| · | the anti-dilution provisions of the warrants, if any; |
| · | any redemption or call provisions; |
| · | whether the warrants may be sold separately or with other securities as parts of units; and |
| · | any additional terms of the warrants, including terms, procedures and limitations relating to the exchange
and exercise of the warrants. |
Transfer Agent and Registrar
The transfer agent and registrar
for any warrants will be set forth in the applicable prospectus supplement.
DESCRIPTION OF RIGHTS
General
We may issue rights to our
shareholders to purchase our Class A ordinary shares, our preference shares or any of the other securities described in this prospectus.
We may offer rights separately or together with one or more additional rights, Debt Securities, preference shares, Class A ordinary shares
or warrants, or any combination of those securities in the form of units, as described in the applicable prospectus supplement. Each series
of rights will be issued under a separate rights agreement to be entered into between us and a bank or trust company, as rights agent.
The rights agent will act solely as our agent in connection with the certificates relating to the rights of the series of certificates
and will not assume any obligation or relationship of agency or trust for or with any holders of rights certificates or beneficial owners
of rights. The following description sets forth certain general terms and provisions of the rights to which any prospectus supplement
may relate. The particular terms of the rights to which any prospectus supplement may relate and the extent, if any, to which the general
provisions may apply to the rights so offered will be described in the applicable prospectus supplement. To the extent that any particular
terms of the rights, rights agreement or rights certificates described in a prospectus supplement differ from any of the terms described
below, then the terms described below will be deemed to have been superseded by that prospectus supplement. We encourage you to read the
applicable rights agreement and rights certificate for additional information before you decide whether to purchase any of our rights.
We will provide in a prospectus
supplement the following terms of the rights being issued:
| · | the date of determining the shareholders entitled to the rights distribution; |
| · | the aggregate number of Class A ordinary shares, preference shares or other securities purchasable upon
exercise of the rights; |
| · | the aggregate number of rights issued; |
| · | whether the rights are transferrable and the date, if any, on and after which the rights may be separately
transferred; |
| · | the date on which the right to exercise the rights will commence, and the date on which the right to exercise
the rights will expire; |
| · | the method by which holders of rights will be entitled to exercise; |
| · | the conditions to the completion of the offering, if any; |
| · | the withdrawal, termination and cancellation rights, if any; |
| · | whether there are any backstop or standby purchaser or purchasers and the terms of their commitment, if
any; |
| · | whether shareholders are entitled to oversubscription rights, if any; |
| · | any applicable material U.S. federal income tax considerations; and |
| · | any other terms of the rights, including terms, procedures and limitations relating to the distribution,
exchange and exercise of the rights, as applicable. |
Each right will entitle the
holder of rights to purchase for cash the principal amount of Class A ordinary shares, preference shares or other securities at the exercise
price provided in the applicable prospectus supplement. Rights may be exercised at any time up to the close of business on the expiration
date for the rights provided in the applicable prospectus supplement.
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 Class A ordinary shares, preference shares or other securities, as applicable, 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 shareholders, to or through agents, underwriters or dealers or through a combination of such methods, including pursuant to
standby arrangements, as described in the applicable prospectus supplement.
Rights Agent
The rights agent for any
rights we offer will be set forth in the applicable prospectus supplement.
DESCRIPTION OF UNITS
The following description,
together with the additional information that we include in any applicable prospectus supplements summarizes the material terms and provisions
of the units that we may offer under this prospectus. While the terms we have summarized below will apply generally to any units that
we may offer under this prospectus, we will describe the particular terms of any series of units in more detail in the applicable prospectus
supplement. The terms of any units offered under a prospectus supplement may differ from the terms described below.
We will incorporate by reference
from reports that we file with the SEC, the form of unit agreement that describes the terms of the series of units we are offering, and
any supplemental agreements, before the issuance of the related series of units. The following summaries of material terms and provisions
of the units are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement and any supplemental
agreements applicable to a particular series of units. We urge you to read the applicable prospectus supplements related to the particular
series of units that we may offer under this prospectus, as well as any related free writing prospectuses and the complete unit agreement
and any supplemental agreements that contain the terms of the units.
General
We may issue units consisting
of our Class A ordinary shares, our preference shares one or more Debt Securities, warrants or rights for the purchase of Class A ordinary
shares, preference shares and/or Debt Securities in one or more series, 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 security included in the unit. The unit agreement under which a unit is issued may provide that the securities included
in the unit may not be held or transferred separately, at any time or at any time before a specified date.
We will describe in the applicable
prospectus supplement the terms of the series of units being offered, including:
| · | the 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 set forth in any prospectus supplement or as described under “Description of Shares,” “Description
of Debt Securities,” “Description of Warrants” and “Description of Rights” will apply to each unit, as applicable,
and to any Class A ordinary shares, preference shares, debt security, warrant, or right included in each unit, as applicable.
Unit Agent
The name and address of the
unit agent for any units we offer will be set forth in the applicable prospectus supplement.
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.
CERTAIN MATERIAL U.S. FEDERAL INCOME AND CAYMAN
ISLANDS TAX CONSIDERATIONS
The applicable prospectus
supplement will describe certain U.S. federal income tax consequences of the acquisition, ownership and disposition of any Securities
offered thereunder by an initial investor who is a U.S. person (within the meaning of the U.S. Internal Revenue Code).
The applicable prospectus
supplement may also describe certain Cayman Islands income tax consequences to an investor of acquiring any Securities offered thereunder,
including, for investors who are non-residents of the Cayman Islands, whether the payment of dividends or distributions, if any, on the
Securities will be subject Cayman Islands non-resident withholding tax.
LEGAL MATTERS
Unless the applicable prospectus
supplement indicates otherwise, certain matters of U.S. law will be passed upon for us by Davis Polk & Wardwell LLP. Unless the applicable
prospectus supplement indicates otherwise, the validity of certain matters of Cayman Islands law including with respect to our Class A
ordinary shares and preference shares will be passed on for us by Walkers LLP. Additional legal matters may be passed upon for
any underwriters, dealers or agents by counsel that we will name in the applicable prospectus supplement.
EXPERTS
The consolidated financial
statements of ProKidney appearing in ProKidney’s Annual Report (Form 10-K) for the year ended December 31, 2022, have been audited
by Ernst & Young LLP, independent registered public accounting firm, as set forth in their report thereon, included therein, and incorporated
herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on
the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the reporting
requirements of the Exchange Act and file annual, quarterly and current reports, proxy statements and other information with the SEC.
SEC filings are available at the SEC’s web site at http://www.sec.gov.
This prospectus is only part
of a registration statement on Form S-3 that we have filed with the SEC under the Securities Act and therefore omits certain information
contained in the registration statement. We have also filed exhibits and schedules with the registration statement that are excluded from
this prospectus, and you should refer to the applicable exhibit or schedule for a complete description of any statement referring to any
contract or other document.
We also maintain a website
at www.prokidney.com, through which you can access our SEC filings. The information set forth on our website is not part of this
prospectus.
INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows 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 later with the SEC will automatically update and supersede this information. We filed a registration
statement on Form S-3 under the Securities Act with the SEC with respect to the securities we may offer pursuant to this prospectus. This
prospectus omits certain information contained in the registration statement, as permitted by the SEC. You should refer to the registration
statement, including the exhibits, for further information about us and the securities we may offer pursuant to this prospectus. Statements
in this prospectus regarding the provisions of certain documents filed with, or incorporated by reference in, the registration statement
are not necessarily complete and each statement is qualified in all respects by that reference. Copies of all or any part of the registration
statement, including the documents incorporated by reference or the exhibits, may be obtained from the SEC’s website at http://www.sec.gov.
The documents we are incorporating by reference are:
| · | our Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the SEC on March 28, 2023, as amended on April 27, 2023; |
| · | our Quarterly Report on Form 10-Q for the quarters ended March 31, 2023, June 30, 2023, and September 30, 2023, filed with the SEC
on May 11, 2023, August 10, 2023 and November 14, 2023, respectively; |
| · | the portions of our Definitive Proxy Statement on Schedule 14A filed with the SEC on May 26, 2023 that are deemed “filed”
with the SEC under the Exchange Act; |
| · | our Current Reports on Form 8-K, filed with the SEC on January 10, 2023, January 19, 2023, February 6, 2023, March 6, 2023, June 16, 2023, June 30, 2023, July 18, 2023, and November 13, 2023; |
| · | the description of our Class A ordinary shares contained in our registration statement on Form 8-A12B filed June 29, 2021, including
any other amendments or reports filed for the purpose of updating such description (other than any portion of such filings that are furnished
under applicable SEC rules rather than filed); and |
| · | all reports and other documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after
the date of this prospectus and prior to the termination or completion of the offering of securities under this prospectus shall be deemed
to be incorporated by reference in this prospectus and to be a part hereof from the date of filing such reports and other documents. |
All documents filed by us
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus and any accompanying prospectus supplement
and before the termination of the offering shall also be deemed to be incorporated herein by reference. The most recent information that
we file with the SEC automatically updates and supersedes older information. The information contained in any such filing will be deemed
to be a part of this prospectus, commencing on the date on which the document is filed.
We are not, however, incorporating
by reference any documents or portions thereof, whether specifically listed above or filed in the future, that are not deemed “filed”
with the SEC, including our compensation committee report, performance graph and the certifications of our chief executive officer and
chief financial officer required by Rule 13a-14(b) or Rule 15d-14(b) under the Exchange Act and Section 1350 of Chapter 63 of Title 18
of the United States Code (included in or accompanying our latest Annual Report on Form 10-K incorporated by reference herein) or any
information furnished pursuant to Items 2.02 or 7.01 of Form 8-K or certain exhibits furnished pursuant to Item 9.01 of Form 8-K.
We will provide without charge
upon written or oral request to each person, including any beneficial owner, to whom a prospectus is delivered, a copy of any or all of
the documents which are incorporated by reference into the prospectus but not delivered with the prospectus (other than exhibits to those
documents unless such exhibits are specifically incorporated by reference as an exhibit in this prospectus). Requests should be directed
to:
ProKidney Corp.
c/o 2000 Frontis Plaza Blvd, Suite 250
Winston-Salem, NC 27103
Attn: Todd Girolamo
Telephone: (336) 999-7028
You may also access these
documents on our website, http://www.prokidney.com. The information contained on, or that can be accessed through, our website
is not a part of this prospectus. We have included our website address in this prospectus solely as an inactive textual reference.
You should rely only on information
contained in, or incorporated by reference into, this prospectus. We have not authorized anyone to provide you with information different
from that contained in this prospectus or incorporated by reference in this prospectus. We are not making offers to sell the securities
in any jurisdiction in which such an offer or solicitation is not authorized or in which the person making such offer or solicitation
is not qualified to do so or to anyone to whom it is unlawful to make such offer or solicitation.
ProKidney Corp.
Class A Ordinary Shares
Preference Shares
Debt Securities
Warrants
Rights
Units
$500,000,000
PROSPECTUS
, 2023
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following expenses incurred
in connection with the sale of the securities being registered will be borne by the registrant. Other than the SEC registration fee and
the FINRA filing fee, the amounts stated are estimates.
SEC Registration Fee |
$73,800 |
FINRA filing fee |
$* |
Legal Fees and Expenses |
$* |
Accounting Fees and Expenses |
$* |
Miscellaneous |
$* |
Total |
$* |
*These fees are calculated based on the securities offered and the
number of issuances and accordingly cannot be defined at this time.
Item 15. Indemnification of Directors and Officers
Cayman Islands law does
not limit the extent to which a company’s memorandum and articles of association may provide for indemnification of officers and
directors, except to the extent any such provision may be held by the Cayman Islands courts to be contrary to public policy, such as to
provide indemnification against civil fraud or the consequences of committing a crime. Our Charter provides for indemnification of our
officers and directors to the maximum extent permitted by law, including for any liability incurred in their capacities as such, except
through their own actual fraud, willful default or willful neglect.
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 theretofore unenforceable.
Item 16. Exhibits
The exhibits to this registration statement are
listed in the Exhibit Index immediately prior the signature page hereto, which Exhibit Index is hereby incorporated by reference into
this Item 16 by reference.
Item 17. Undertakings
The undersigned registrant hereby undertakes:
| (a)(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 (“Securities
Act”); |
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
and |
| (iii) | To include any material information with respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs
(a)(1)(i), (a)(1)(ii) and (a)(1)(iii) |
of this section do not apply if the
information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished
to the Securities and Exchange Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934, as amended (“Exchange Act”), that are incorporated by reference in the registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement;
| (2) | That, for the purpose of determining any liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof; |
| (3) | To remove from registration by means of a post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering; |
| (4) | That, for the purpose of determining liability under the Securities Act to any purchaser: |
| (i) | Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
| (ii) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing
the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities
in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at
that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities
in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof; provided, however, that no statement made in a registration statement or prospectus that is part
of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such effective date; |
| (5) | That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any
purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities
of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities
to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned
registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
| (i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required
to be filed pursuant to Rule 424; |
| (ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant
or used or referred to by the undersigned registrant; |
| (iii) | The portion of any other free writing prospectus relating to the offering containing material information
about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
| (iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser; |
| (6) | That, for purposes of determining any liability under the Securities Act, each filing of the registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof; |
| (7) | Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised
that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue; |
| (8) | That, for purposes of determining any liability under the Securities Act of 1933, the information omitted
from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus
filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of this
registration statement as of the time it was declared effective; |
| (9) | That, for the purpose of determining any liability under the Securities Act of 1933, each post-effective
amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and |
| (10) | To file an application for the purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act of 1939 in accordance with the rules and regulations prescribed by the Securities and Exchange
Commission under Section 305(b)(2) of the Trust Indenture Act of 1939. |
EXHIBIT INDEX
| ** | To be subsequently filed, if applicable, by an amendment to this registration statement or by a current
report on Form 8-K. |
| *** | To be filed in accordance with the requirements of Section 305(b)(2) of the Trust Indenture Act of 1939, as amended, and the applicable
rules thereunder. |
| † | The annexes, schedules, and certain exhibits to this Exhibit have been omitted pursuant to Item 601(a)(5). |
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 Winston-Salem, State of North Carolina, on November 22, 2023
|
PROKIDNEY CORP. |
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By: |
/s/ Bruce Culleton |
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Bruce Culleton |
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Chief Executive Officer |
POWER OF ATTORNEY
We, the undersigned officers
and directors of ProKidney Corp., hereby severally constitute and appoint Bruce Culleton and James Coulston and each of them singly (with
full power to each of them to act alone), our true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution
in each of them for him or her and in his or her name, place and stead, and in any and all capacities, to sign any and all amendments
(including, without limitation, post-effective amendments) to this registration statement (or any other registration statement for the
same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933), and to file the same, with
all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done
in and about the premises, 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 any of them or their or his or her 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 |
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Title |
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Date |
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/s/ Bruce Culleton |
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Chief Executive Officer and Director (Principal Executive Officer) |
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November 22, 2023 |
Bruce Culleton |
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/s/ James Coulston, CPA |
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Chief Financial Officer (Principal Financial and Accounting Officer) |
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November 22, 2023 |
James Coulston, CPA |
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/s/ Pablo Legorreta |
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Chairman |
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November 22, 2023 |
Pablo Legorreta |
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/s/ William F. Doyle |
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Director |
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November 22, 2023 |
William F. Doyle |
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/s/ Jennifer Fox |
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Director |
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November 22, 2023 |
Jennifer Fox |
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/s/ José Ignacio Jimenez Santos |
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Director |
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November 22, 2023 |
José Ignacio Jimenez Santos |
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/s/ Alan M. Lotvin, M.D. |
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Director |
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November 22, 2023 |
Alan M. Lotvin, M.D. |
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/s/ John M. Maraganore, Ph.D. |
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Director |
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November 22, 2023 |
John M. Maraganore, Ph.D. |
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/s/ Brian J.G. Pereira, M.D. |
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Director |
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November 22, 2023 |
Brian J.G. Pereira, M.D. |
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/s/ Uma Sinha, Ph.D. |
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Director |
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November 22, 2023 |
Uma Sinha, Ph.D. |
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Exhibit 4.1
PROKIDNEY
CORP.
Issuer
AND
[
] Trustee
INDENTURE
Dated
as of [ ]
Senior
Debt Securities
TABLE
OF CONTENTS1
Page
1
This Table of Contents does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of
its terms or provisions.
INDENTURE, dated as of [ ],
by and between ProKidney Corp., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the “Company”),
and [ ],
as trustee (the “Trustee”):
WHEREAS, for its lawful corporate
purposes, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of debt securities
(hereinafter referred to as the “Securities”), in an unlimited aggregate principal amount to be issued from time to time in
one or more series as in this Indenture provided, as registered Securities without coupons, to be authenticated by the certificate of
the Trustee;
WHEREAS, to provide the terms
and conditions upon which the Securities are to be authenticated, issued and delivered, the Company has duly authorized the execution
of this Indenture; and
WHEREAS, all things necessary
to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration
of the premises and the purchase of the Securities by the holders thereof, it is mutually covenanted and agreed as follows for the equal
and ratable benefit of the holders of Securities:
ARTICLE
I
DEFINITIONS
SECTION 1.01 Definitions of
Terms.
The terms defined in this
Section (except as in this Indenture otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture
and of any indenture supplemental hereto shall have the respective meanings specified in this Section and shall include the plural as
well as the singular. All other terms used in this Indenture that are defined in the Trust Indenture Act of 1939, as amended, or that
are by reference in such Act defined in the Securities Act of 1933, as amended (except as herein otherwise expressly provided or unless
the context otherwise requires), shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act
as in force at the date of the execution of this instrument.
“Authenticating Agent”
means an authenticating agent with respect to all or any of the series of Securities appointed with respect to all or any series of the
Securities by the Trustee pursuant to Section 2.10.
“Bankruptcy Law”
means Title 11, U.S. Code, Part V of the Companies Act (as amended) of the Cayman Islands, the Companies Winding-Up Rules (as amended)
of the Cayman Islands, the Insolvency Practitioner’s Regulations (as amended) of the Cayman Islands and the Foreign Bankruptcy Proceedings
(International Cooperation) Rules (as amended) of the Cayman Islands, each amended from time to time or any similar Cayman Islands, U.S.
federal or state law for the relief of debtors.
“Board of Directors”
means the Board of Directors of the Company or any duly authorized committee of such Board.
“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such certification.
“Business Day”
means, with respect to any series of Securities, any day other than a day on which Federal or State banking institutions in the Borough
of Manhattan, the City and State of New York, are authorized or obligated by law, executive order or regulation to close.
“Cayman AML Regulations”:
The Anti-Money Laundering Regulations (as amended) of the Cayman Islands and The Guidance Notes on the Prevention and Detection of Money
Laundering, Terrorist Financing and Proliferation Financing in the Cayman Islands, each as amended and revised from time to time.
“Cayman FATCA Legislation”:
The Cayman Islands Tax Information Authority Act (as amended) and the OECD Standard for Automatic Exchange of Financial Account Information
– Common Reporting Standard (in each case, including any implementing legislation, rules, regulations and guidance notes with respect
to such laws).
“Certificate”
means a certificate signed by the chief executive officer, the chief financial officer or the principal accounting officer of the Company.
The Certificate need not comply with the provisions of Section 13.07.
“Commission” means the Securities and
Exchange Commission.
“Company” means
the corporation named as the “Company” in the first paragraph of this instrument until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor corporation.
“Corporate Trust Office”
means the office of the Trustee at which, at any particular time, its corporate trust business shall be principally administered, which
office at the date hereof is located at [
], except that whenever a provision herein refers to an office or agency of the Trustee in the Borough of Manhattan, the City and State
of New York, such office is located, at the date hereof, at [
].
“Custodian” means
any receiver, trustee, assignee, liquidator, or similar official under any Bankruptcy Law.
“Default” means
an event which is, or after notice or lapse of time, or both, would constitute an Event of Default.
“Depositary” means,
with respect to Securities of any series, for which the Company shall determine that such Securities will be issued as a Global Security,
The Depository Trust Company, New York, New York, another clearing agency, or any successor registered as a clearing agency under the
Exchange Act, or other applicable statute or regulation, which, in each case, shall be designated by the Company pursuant to either Section
2.01 or Section 2.11.
“Event of Default”
means, with respect to Securities of a particular series, any event specified in Section 6.01, continued for the period of time, if any,
therein designated.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“FATCA”: Sections 1471
through 1474 of the Code, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to
Section 1471(b) of the Code, any intergovernmental agreement entered into in connection with such sections of the Code, or any U.S.
or non-U.S. fiscal or regulatory legislation, rules, guidance notes or practices adopted pursuant to any such intergovernmental agreement.
“Global Security”
means, with respect to any series of Securities, a Security executed by the Company and delivered by the Trustee to the Depositary or
pursuant to the Depositary’s instruction, all in accordance with this Indenture, which shall be registered in the name of the Depositary
or its nominee.
“Governmental Obligations”
means securities that are (i) direct obligations of the United States of America for the payment of which its full faith and credit is
pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America that,
in either case, are non-callable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with respect to any such Governmental Obligation or
a specific payment of principal of or interest on any such Governmental Obligation held by such custodian for the account of the holder
of such depositary receipt; provided, however, that (except as required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the Governmental
Obligation or the specific payment of principal of or interest on the Governmental Obligation evidenced by such depositary receipt.
“herein,” “hereof”
and “hereunder,” and other words of similar import, refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
“Indenture” means
this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental
hereto entered into in accordance with the terms hereof.
“Interest Payment Date,”
when used with respect to any installment of interest on a Security of a particular series, means the date specified in such Security
or in a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date on which an installment
of interest with respect to Securities of that series is due and payable.
“Officers’ Certificate”
means a certificate signed by a director or the President or a Senior Vice President and by the Chief Financial Officer, Vice President
of Finance, the Treasurer or an Assistant Treasurer or the Controller or an Assistant Controller or the Secretary or an Assistant Secretary
of the Company that is delivered to the Trustee in accordance with the terms hereof. Certificate shall include the statements provided
for in Section 13.07, if and to the extent required by the provisions thereof.
“Opinion of Counsel”
means a written opinion of counsel, who may be counsel to the Company (and may include directors or employees of the Company) and which
opinion is acceptable to the Trustee which acceptance shall not be unreasonably withheld.
“Outstanding”,
when used with reference to Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time, all
Securities of that series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore
canceled by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that have previously
been canceled; (b) Securities or portions thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary
amount shall have been deposited in trust with the Trustee or
with any paying agent (other than the Company)
or shall have been set aside and segregated in trust by the Company (if the Company shall act as its own paying agent); provided, however,
that if such Securities or portions of such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall
have been given as in Article III provided, or provision satisfactory to the Trustee shall have been made for giving such notice; and
(c) Securities in lieu of or in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms
of Section 2.07.
“Person” means
any individual, corporation, limited liability company, partnership, joint-venture, association, joint-stock company, trust, estate, unincorporated
organization or government or any agency or political subdivision thereof.
“Predecessor Security”
of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.07 in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“Responsible Officer,”
when used with respect to the Trustee, means any officer of the Trustee, including any vice president, assistant vice president, secretary,
assistant secretary, the treasurer, any assistant treasurer, the managing director or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular
subject.
“Securities” means
the debt Securities authenticated and delivered under this Indenture.
“Security Register”
has the meaning specified in Section 2.05.
“Security Registrar”
has the meaning specified in Section 2.05.
“Securityholder,”
“holder of Securities,” “registered holder,” or other similar term, means the Person or Persons in whose name
or names a particular Security shall be registered in the Security Register.
“Subsidiary” means,
with respect to any Person, (i) any corporation at least a majority of whose outstanding Voting Stock shall at the time be owned, directly
or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, (ii) any general
partnership, joint venture or similar entity, at least a majority of whose outstanding partnership or similar interests shall at the time
be owned by such Person, or by one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries and (iii) any limited
partnership of which such Person or any of its Subsidiaries is a general partner.
“Trustee” means
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 such successor Trustee. The term
“Trustee” as used with respect to a particular series of the Securities shall mean the trustee with respect to that series.
“Trust Indenture Act”
means the Trust Indenture Act of 1939, as amended, subject to the provisions of Sections 9.01, 9.02, and 10.01, as in effect at the date
of execution of this instrument; provided, however, that in the event the Trust Indenture Act is amended after such date, Trust Indenture
Act means, to the extent required by such amendment, the Trust Indenture Act of 1939, as so amended, or any successor statute.
“Voting Stock,”
as applied to any Person, means shares, interests, participations or other equivalents in the equity interest (however designated) in
such Person having ordinary voting power for the election of a majority of the directors (or the equivalent) of such Person, other than
shares, interests, participations or other equivalents having such power only by reason of the occurrence of a contingency.
ARTICLE
II
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01 Designation and
Terms of Securities.
| (a) | The aggregate principal amount of Securities that may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued in one or more series up to the aggregate principal amount of
Securities of that series from time to time authorized by or pursuant to a Board Resolution of the Company or pursuant to one or more
indentures supplemental hereto. Prior to the initial issuance of Securities of a given series, there shall be established in or pursuant
to a Board Resolution of the Company, and set forth in an Officers’ Certificate of the Company, or established in one or more indentures
supplemental hereto: |
| (1) | the title of the Security of the series (which shall distinguish the Securities
of the series from all other Securities); |
| (2) | the aggregate principal amount of the Securities of such series
initially to be issued and any limit upon the aggregate principal amount of the Securities of that series that may be authenticated and
delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for,
or in lieu of, other Securities of that series); |
| (3) | the currency or units based on or relating to currencies in which debt securities
of such series are denominated and the currency or units in which principal or interest or both will or may be payable; |
| (4) | the date or dates on which the principal of the Securities of
the series is payable and the place(s) of payment; |
| (5) | the rate or rates at which the Securities of the series shall bear interest
or the manner of calculation of such rate or rates, if any; |
| (6) | the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest will be payable or the manner of determination of such Interest Payment Dates, the place(s)
of payment, and the record date for the determination of holders to whom interest is payable on any such Interest Payment Dates or the
method for determining such dates; |
| (7) | the right, if any, to extend the interest payment periods or to defer the
payment of interest and the duration of such extension; |
| (8) | the period or periods within which, the price or prices at which and the
terms and conditions upon which, Securities of the series may be redeemed, in whole or in part, at the option of the Company; |
| (9) | the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous provisions (including payments made in cash in satisfaction of future
sinking fund obligations) or at the option of a holder thereof and the period or periods within which, the price or prices at which,
and the terms and conditions upon which, Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such
obligation; |
| (10) | whether or not the debt securities will be secured or unsecured, and the
terms of any secured debt; |
| (11) | the form of the Securities of the series including the form
of the Certificate of Authentication for such series; |
| (12) | if other than denominations of one thousand U.S. dollars ($1,000) or any
integral multiple thereof, the denominations in which the Securities of the series shall be issuable; |
| (13) | any and all other terms with respect to such series (which terms
shall not be inconsistent with the terms of this Indenture, as amended by any supplemental indenture) including any terms which may be
required by or advisable under United States laws or regulations or advisable in connection with the marketing of Securities of that
series; |
| (14) | whether the Securities are issuable as a Global Security and, in such case,
the identity of the Depositary for such series; |
| (15) | whether the Securities will be convertible into shares of common
stock or other securities of the Company and, if so, the terms and conditions upon which such Securities will be so convertible, including
the conversion price and the conversion period; |
| (16) | if other than the principal amount thereof, the portion of the principal
amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section
6.01; and |
| (17) | any additional or different Events of Default or restrictive
covenants provided for with respect to the Securities of the series. |
All Securities of any one
series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to any such Board
Resolution or in any indentures supplemental hereto.
If any of the terms of the
series are established by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of such action shall
be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the
Officers’ Certificate of the Company setting forth the terms of the series.
Securities of any particular
series may be issued at various times, with different dates on which the principal or any installment of principal is payable, with different
rates of interest, if any, or different methods by which rates of interest may be determined, with different dates on which such interest
may be payable and with different redemption dates.
SECTION 2.02 Form of Securities
and Trustee’s Certificate.
The Securities of any series
and the Trustee’s certificate of authentication to be borne by such Securities shall be substantially of the tenor and purport as
set forth in one or more indentures supplemental hereto or as provided in a Board Resolution of the Company and as set forth in an Officers’
Certificate of the Company and may have such letters, numbers or other marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation
of any stock exchange on which Securities of that series may be listed, or to conform to usage.
SECTION 2.03 Denominations:
Provisions for Payment.
The Securities shall be issuable
as registered Securities and in the denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, subject to Section
2.01(a)(12). The Securities of a particular series shall bear interest payable on the dates and at the rate specified with respect to
that series. The principal of and the interest on the Securities of any series, as well as any premium thereon in case of redemption thereof
prior to maturity, shall be payable in the coin or currency of the United States of America that at the time is legal tender for public
and private debt, at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, the City and State of
New York. Each Security shall be dated the date of its authentication. Interest on the Securities shall be computed on the basis of a
360-day year composed of twelve 30-day months.
The interest installment on
any Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities of that series
shall be paid to the Person in whose name said Security (or one or more Predecessor Securities) is registered at the close of business
on the regular record date for such interest installment. In the event that any Security of a particular series or portion thereof is
called for redemption and the redemption date is subsequent to a regular record date with respect to any Interest Payment Date and prior
to such Interest Payment Date, interest on such Security will be paid upon presentation and surrender of such Security as provided in
Section 3.03.
Any interest on any Security
that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date for Securities of the same series (herein
called “Defaulted Interest”) shall forthwith cease to be payable to the registered holder on the relevant regular record date
by virtue of having been such holder; and such Defaulted Interest shall be paid by the Company, at its election, as provided in clause
(1) or clause (2) below:
| (1) | The Company may make payment of any Defaulted Interest on Securities to
the Persons in whose names such Securities (or their respective Predecessor Securities) are registered at the close of business on a special
record date for the payment of such Defaulted Interest, which shall be fixed in the following manner: the Company shall notify the Trustee
in writing of the amount of Defaulted Interest proposed to be paid on each such Security and the date of the proposed payment, and at
the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such |
deposit prior to the
date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a special record date for the payment of such Defaulted Interest
which shall not be more than 15 nor less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such special record date and, in
the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the special record
date therefor to be mailed, first class postage prepaid, to each Securityholder at his or her address as it appears in the Security Register,
not less than 10 days prior to such special record date. Notice of the proposed payment of such Defaulted Interest and the special record
date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such Securities (or
their respective Predecessor Securities) are registered on such special record date.
| (2) | The Company may make payment of any Defaulted Interest on any Securities
in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and
upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant
to this clause, such manner of payment shall be deemed practicable by the Trustee. |
Unless otherwise set forth
in a Board Resolution of the Company or one or more indentures supplemental hereto establishing the terms of any series of Securities
pursuant to Section 2.01 hereof, the term “regular record date” as used in this Section with respect to a series of Securities
with respect to any Interest Payment Date for such series shall mean either the fifteenth day of the month immediately preceding the month
in which an Interest Payment Date established for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date
is the first day of a month, or the last day of the month immediately preceding the month in which an Interest Payment Date established
for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is the fifteenth day of a month, whether or
not such date is a Business Day.
Subject to the foregoing provisions
of this Section, each Security of a series delivered under this Indenture upon transfer of or in exchange for or in lieu of any other
Security of such series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security.
SECTION 2.04 Execution and Authentications.
The Securities shall be signed
on behalf of the Company by its President, or one of its Senior Vice Presidents, or its Treasurer, or one of its Assistant Treasurers,
or its Secretary, or one of its Assistant Secretaries, under its corporate seal attested by its Secretary or one of its Assistant Secretaries.
Signatures may be in the form of a manual or facsimile signature. The Company may use the facsimile signature of any Person who shall
have been a President or Vice President thereof, or of any Person who shall have been a Treasurer or Assistant Treasurer thereof, or of
any Person who shall have been a Secretary or Assistant Secretary thereof, notwithstanding the fact that at the time the Securities shall
be authenticated and delivered or disposed of such Person shall have ceased to be the President or a Vice President, the Treasurer or
an Assistant Treasurer or the Secretary or an Assistant Secretary, of the Company. The seal of the Company may be in the form of a facsimile
of such seal and may be impressed, affixed, imprinted or otherwise reproduced on the Securities. The Securities may contain such notations,
legends or endorsements required by law, stock exchange rule or usage. Each Security shall be dated the date of its authentication.
A Security shall not be valid
or obligatory for any purpose and shall not be entitled to any benefit under this Indenture, in each case, until authenticated with a
certificate of authentication manually signed by an authorized signatory of the Trustee, or by an Authenticating Agent. Such certificate
shall be conclusive evidence, and the only evidence, that the Security so authenticated has been duly authenticated and delivered hereunder
and that the Security is entitled to the benefits of this Indenture. At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together
with a written order of the Company for the authentication and delivery of such Securities, signed by its President or any Vice President
and its Secretary or any Assistant Secretary, and the Trustee in accordance with such written order shall authenticate and deliver such
Securities.
In authenticating such Securities
and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive,
and (subject to Section 7.01) shall be fully protected in relying upon, an Opinion of Counsel stating that the form and terms thereof
have been established in conformity with the provisions of this Indenture.
The Trustee shall not be required
to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights,
duties or immunities under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee.
SECTION 2.05 Registration of
Transfer and Exchange.
| (a) | Securities of any series may be exchanged upon presentation thereof at the
office or agency of the Company designated for such purpose in the Borough of Manhattan, the City and State of New York, for other Securities
of such series of authorized denominations, and for a like aggregate principal amount, upon payment of a sum sufficient to cover any tax
or other governmental charge in relation thereto, all as provided in this Section. In respect of any Securities so surrendered for exchange,
the Company shall execute, the Trustee shall authenticate and such office or agency shall deliver in exchange therefor the Security or
Securities of the same series that the Securityholder making the exchange shall be entitled to receive, bearing numbers not contemporaneously
outstanding. |
| (b) | The Company shall keep, or cause to be kept, at its office or
agency designated for such purpose in the Borough of Manhattan, the City and State of New York, or such other location designated by
the Company a register or registers (herein referred to as the “Security Register”) in which, subject to such reasonable
regulations as it may prescribe, the Company shall register the Securities and the transfers of Securities as in this Article provided
and which at all reasonable times shall be open for inspection by the Trustee. The registrar for the purpose of registering Securities
and transfer of Securities as herein provided shall be appointed as authorized by Board Resolution (the “Security Registrar”). |
Upon surrender for transfer of any Security
at the office or agency of the Company designated for such purpose, the Company shall execute, the Trustee shall authenticate and such
office or agency shall deliver in the name of the transferee or transferees a new Security or Securities of the same series as the Security
presented for a like aggregate principal amount.
All Securities presented or surrendered
for exchange or registration of transfer, as provided in this Section, shall be accompanied (if so required by the Company or the Security
Registrar) by a written instrument or instruments of transfer, in form satisfactory to the
Company or the Security Registrar, duly
executed by the registered holder or by such holder’s duly authorized attorney in writing.
| (c) | No service charge shall be made for any exchange or registration of transfer
of Securities, or issue of new Securities in case of partial redemption of any series, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge in relation thereto, other than exchanges pursuant to Section 2.06, Section 3.03(b) and
Section 9.04 not involving any transfer. |
| (d) | The Company shall not be required (i) to issue, exchange or
register the transfer of any Securities during a period beginning at the opening of business 15 days before the day of the mailing of
a notice of redemption of less than all the Outstanding Securities of the same series and ending at the close of business on the day
of such mailing, nor (ii) to register the transfer of or exchange any Securities of any series or portions thereof called for redemption.
The provisions of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11 hereof. |
| (e) | Each Securityholder and beneficial owner of any Securities (each a "Holder"),
will be deemed to make the following representations and covenants by its acceptance of any Securities: |
| (1) | it is not a member of the public in the Cayman Islands; |
| (2) | it will provide the Company or its agents with such information
and documentation as may be required for the Company to achieve compliance with Cayman AML Regulations and to promptly update or replace
such information or documentation as necessary; |
| (3) | it acknowledges receipt of the Company’s privacy notice (which can
be accessed at https://prokidney.com/privacy-notice/ and provides information on the Company’s use of personal data in accordance
with the Cayman Islands Data Protection Act (as amended) and, in respect of any EU data subjects, the EU General Data Protection Regulation)
and, if applicable, agrees to promptly provide the privacy notice (or any updated version thereof as may be provided from time to time)
to each individual (such as any individual directors, shareholders, beneficial owners, authorized signatories, trustees or others) whose
personal data such beneficial owner provides to the Company or any of its affiliates or delegates; and |
| (4) | it will provide the Company or its agents with any correct,
complete and accurate information and documentation that may be required for the Company to comply with FATCA and the Cayman FATCA Legislation
and to prevent the imposition of U.S. federal withholding tax under FATCA and fines and penalties on the Company or any affiliate (or
any of their directors) under the Cayman FATCA Legislation on payments to or for the benefit of the Company or any affiliate. In the
event that it fails to provide such information or documentation for the purposes of FATCA, or to the extent that its ownership of Securities
would otherwise cause the Company or any affiliate to be subject to any tax under FATCA, (i) the Company (and any agent acting on its
behalf) is authorized to withhold amounts otherwise distributable to such Holder as compensation for any tax imposed under FATCA as a
result of such failure or such Holder’s ownership, and (ii) to the extent |
necessary to avoid
an adverse effect on the Company as a result of such failure or such Holder’s ownership, the Company will have the right to compel
such Holder to sell any of its Securities and, if such Holder does not sell such Securities within 10 Business Days after notice from
the Company or its agents, the Company will have the right to sell such Securities at a public or private sale called and conducted in
any manner permitted by law, and to remit the net proceeds of such sale (taking into account any taxes incurred by the company in connection
with such sale) to such Holder as payment in full for such Securities. The Company may also assign such Securities a separate securities
identifier in the Company’s sole discretion. Each Holder agrees that the Company, the Trustee or their agents or representatives
may (1) provide any information and documentation concerning its investment in its Securities to the Cayman Islands Tax Information Authority,
the IRS and any other relevant tax authority, and (2) take such other steps as they deem necessary or helpful to enable the Company and
any of its affiliates to comply with FATCA and the Cayman FATCA Legislation.
SECTION 2.06 Temporary Securities.
Pending the preparation of
definitive Securities of any series, the Company may execute, and the Trustee shall authenticate and deliver, temporary Securities (printed,
lithographed or typewritten) of any authorized denomination. Such temporary Securities shall be substantially in the form of the definitive
Securities in lieu of which they are issued, but with such omissions, insertions and variations as may be appropriate for temporary Securities,
all as may be determined by the Company. Every temporary Security of any series shall be executed by the Company and be authenticated
by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities of such
series. Without unnecessary delay the Company will execute and will furnish definitive Securities of such series and thereupon any or
all temporary Securities of such series may be surrendered in exchange therefor (without charge to the holders), at the office or agency
of the Company designated for the purpose in the Borough of Manhattan, the City and State of New York, and the Trustee shall authenticate
and such office or agency shall deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities
of such series, unless the Company advises the Trustee to the effect that definitive Securities need not be executed and furnished until
further notice from the Company. Until so exchanged, the temporary Securities of such series shall be entitled to the same benefits under
this Indenture as definitive Securities of such series authenticated and delivered hereunder.
SECTION 2.07 Mutilated, Destroyed,
Lost or Stolen Securities.
In case any temporary or definitive
Security shall become mutilated or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence) shall execute,
and upon the Company’s request the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the same series,
bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security, or in lieu of and in substitution
for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security shall furnish to the Company and
the Trustee such security or indemnity as may be required by them to save each of them harmless, and, in every case of destruction, loss
or theft, the applicant shall also furnish to the Company and the Trustee evidence to their satisfaction of the destruction, loss or theft
of the applicant’s Security and of the ownership thereof. The Trustee may authenticate any such substituted Security and deliver
the same upon the written request or authorization of any officer of the Company. Upon the issuance of any substituted Security, the Company
may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and
any
other expenses (including the fees and expenses
of the Trustee) connected therewith. In case any Security that has matured or is about to mature shall become mutilated or be destroyed,
lost or stolen, the Company may, instead of issuing a substitute Security, pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated Security) if the applicant for such payment shall furnish to the Company and the Trustee such
security or indemnity as they may require to save them harmless, and, in case of destruction, loss or theft, evidence to the satisfaction
of the Company and the Trustee of the destruction, loss or theft of such Security and of the ownership thereof.
Every replacement Security
issued pursuant to the provisions of this Section shall constitute an additional contractual obligation of the Company whether or not
the mutilated, destroyed, lost or stolen Security shall be found at any time, or be enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all other Securities of the same series duly issued hereunder.
All Securities shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities, and shall preclude (to the extent lawful) any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.08 Cancellation.
All Securities surrendered
for the purpose of payment, redemption, exchange or registration of transfer shall, if surrendered to the Company or any paying agent,
be delivered to the Trustee for cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and no Securities shall be
issued in lieu thereof except as expressly required or permitted by any of the provisions of this Indenture. On request of the Company
at the time of such surrender, the Trustee shall deliver to the Company canceled Securities held by the Trustee. In the absence of such
request the Trustee may dispose of canceled Securities in accordance with its standard procedures and deliver a certificate of disposition
to the Company. If the Company shall otherwise acquire any of the Securities, however, such acquisition shall not operate as a redemption
or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered to the Trustee for cancellation.
SECTION 2.09 Benefits of Indenture.
Nothing in this Indenture
or in the Securities, express or implied, shall give or be construed to give to any Person, other than the parties hereto and the holders
of the Securities any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant, condition
or provision herein contained; all such covenants, conditions and provisions being for the sole benefit of the parties hereto and of the
holders of the Securities.
SECTION 2.10 Authenticating
Agent.
So long as any of the Securities
of any series remain Outstanding there may be an Authenticating Agent for any or all such series of Securities which the Trustee shall
have the right to appoint. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate Securities of
such series issued upon exchange, transfer or partial redemption thereof, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. All references in this
Indenture to the authentication of Securities by the Trustee shall be deemed to include authentication by an Authenticating Agent for
such series. Each Authenticating Agent shall be acceptable to the Company and shall be a corporation that has a combined capital and surplus,
as most recently reported or determined by it, sufficient under the laws of any jurisdiction under which it is organized or in which it
is doing business to conduct a trust business, and that is otherwise
authorized under such laws to conduct such business
and is subject to supervision or examination by Federal or State authorities. If at any time any Authenticating Agent shall cease to be
eligible in accordance with these provisions, it shall resign immediately.
Any Authenticating Agent may
at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time (and upon request
by the Company shall) terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating
Agent and to the Company. Upon resignation, termination or cessation of eligibility of any Authenticating Agent, the Trustee may appoint
an eligible successor Authenticating Agent acceptable to the Company. Any successor Authenticating Agent, upon acceptance of its appointment
hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder as if originally named as an Authenticating
Agent pursuant hereto.
SECTION 2.11 Global Securities
| (a) | If the Company shall establish pursuant to Section 2.01 that some or all
of the Securities of a particular series are to be issued as a Global Security, then the Company shall execute and the Trustee shall,
in accordance with Section 2.04, authenticate and deliver, a Global Security that (i) shall represent, and shall be denominated in an
amount equal to the aggregate principal amount of, the Outstanding Securities of such series which are to be issued as a Global Security,
(ii) shall be registered in the name of the Depositary or its nominee, (iii) shall be delivered by the Trustee to the Depositary or pursuant
to the Depositary’s instruction and (iv) shall bear a legend substantially to the following effect: “Except as otherwise provided
in Section 2.11 of the Indenture, this Security may be transferred, in whole but not in part, only to another nominee of the Depositary
or to a successor Depositary or to a nominee of such successor Depositary.” |
| (b) | Notwithstanding the provisions of Section 2.05, the Global Security
of a series may be transferred, in whole but not in part and in the manner provided in Section 2.05, only to another nominee of the Depositary
for such series, or to a successor Depositary for such series selected or approved by the Company or to a nominee of such successor Depositary. |
| (c) | If at any time the Depositary for a series of the Securities notifies the
Company that it is unwilling or unable to continue as Depositary for such series or if at any time the Depositary for such series shall
no longer be registered or in good standing under the Exchange Act, or other applicable statute or regulation, and a successor Depositary
for such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such condition,
as the case may be, this Section 2.11 shall no longer be applicable to the Securities of such series and the Company will execute, and
subject to Section 2.05, the Trustee will authenticate and deliver the Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security of such
series in exchange for such Global Security. In addition, the Company may at any time determine that the Securities of any series shall
no longer be represented by a Global Security and that the provisions of this Section 2.11 shall no longer apply to the Securities of
such series. In such event the Company will execute and subject to Section 2.05, the Trustee, upon receipt of an Officers’ Certificate
evidencing such determination by the Company, will authenticate and deliver the Securities of such series in definitive registered form
without coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security
of such series in exchange for such Global Security. Upon the exchange of the Global Security for such Securities in definitive |
registered form without
coupons, in authorized denominations, the Global Security shall be canceled by the Trustee. Such Securities in definitive registered form
issued in exchange for the Global Security pursuant to this Section 2.11(c) shall be registered in such names and in such authorized denominations
as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to the Depositary for delivery to the Persons in whose names such Securities are so registered.
ARTICLE
III
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01 Redemption.
The Company may redeem the
Securities of any series issued hereunder on and after the dates and in accordance with the terms established for such series pursuant
to Section 2.01 hereof.
SECTION 3.02 Notice of Redemption.
| (a) | In case the Company shall desire to exercise such right to redeem all or,
as the case may be, a portion of the Securities of any series in accordance with the right reserved so to do, the Company shall, or shall
cause the Trustee to, give notice of such redemption to holders of the Securities of such series to be redeemed by mailing, first class
postage prepaid, a notice of such redemption not less than 30 days and not more than 90 days before the date fixed for redemption of that
series to such holders at their last addresses as they shall appear upon the Security Register unless a shorter period is specified in
the Securities to be redeemed. Any notice that is mailed in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the registered holder receives the notice. In any case, failure duly to give such notice to the holder of any Security
of any series designated for redemption in whole or in part, or any defect in the notice, shall not affect the validity of the proceedings
for the redemption of any other Securities of such series or any other series. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company
shall furnish the Trustee with an Officers’ Certificate evidencing compliance with any such restriction. |
Each such notice of redemption
shall specify the date fixed for redemption and the redemption price at which Securities of that series are to be redeemed, and shall
state that payment of the redemption price of such Securities to be redeemed will be made at the office or agency of the Company in the
Borough of Manhattan, the City and State of New York, upon presentation and surrender of such Securities, that interest accrued to the
date fixed for redemption will be paid as specified in said notice, that from and after said date interest will cease to accrue and that
the redemption is for a sinking fund, if such is the case. If less than all the Securities of a series are to be redeemed, the notice
to the holders of Securities of that series to be redeemed in whole or in part shall specify the particular Securities to be so redeemed.
In case any Security is to be redeemed in part only, the notice that relates to such Security shall state the portion of the principal
amount thereof to be redeemed, and shall state that on and after the redemption date, upon surrender of such Security, a new Security
or Securities of such series in principal amount equal to the unredeemed portion thereof will be issued.
| (b) | If less than all the Securities of a series are to be redeemed, the Company
shall give the Trustee at least 30 days’ notice in advance of the date fixed for redemption as to the |
aggregate principal
amount of Securities of the series to be redeemed, and thereupon the Trustee shall select, by lot or in such other manner as it shall
deem appropriate and fair in its discretion and that may provide for the selection of a portion or portions (equal to one thousand U.S.
dollars ($1,000) or any integral multiple thereof) of the principal amount of such Securities of a denomination larger than $1,000, the
Securities to be redeemed and shall thereafter promptly notify the Company in writing of the numbers of the Securities to be redeemed,
in whole or in part. The Company may, if and whenever it shall so elect, by delivery of instructions signed on its behalf by its President
or any Vice President, instruct the Trustee or any paying agent to call all or any part of the Securities of a particular series for redemption
and to give notice of redemption in the manner set forth in this Section, such notice to be in the name of the Company or its own name
as the Trustee or such paying agent may deem advisable. In any case in which notice of redemption is to be given by the Trustee or any
such paying agent, the Company shall deliver or cause to be delivered to, or permit to remain with, the Trustee or such paying agent,
as the case may be, such Security Register, transfer books or other records, or suitable copies or extracts therefrom, sufficient to enable
the Trustee or such paying agent to give any notice by mail that may be required under the provisions of this Section.
SECTION 3.03 Payment Upon Redemption.
| (a) | If the giving of notice of redemption shall have been completed as above
provided, the Securities or portions of Securities of the series to be redeemed specified in such notice shall become due and payable
on the date and at the place stated in such notice at the applicable redemption price, together with interest accrued to the date fixed
for redemption and interest on such Securities or portions of Securities shall cease to accrue on and after the date fixed for redemption,
unless the Company shall default in the payment of such redemption price and accrued interest with respect to any such Security or portion
thereof. On presentation and surrender of such Securities on or after the date fixed for redemption at the place of payment specified
in the notice, said Securities shall be paid and redeemed at the applicable redemption price for such series, together with interest accrued
thereon to the date fixed for redemption (but if the date fixed for redemption is an interest payment date, the interest installment payable
on such date shall be payable to the registered holder at the close of business on the applicable record date pursuant to Section 2.03). |
| (b) | Upon presentation of any Security of such series that is to
be redeemed in part only, the Company shall execute and the Trustee shall authenticate and the office or agency where the Security is
presented shall deliver to the holder thereof, at the expense of the Company, a new Security of the same series of authorized denominations
in principal amount equal to the unredeemed portion of the Security so presented. |
SECTION 3.04 Sinking Fund.
The provisions of Sections
3.04, 3.05 and 3.06 shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise specified
as contemplated by Section 2.01 for Securities of such series.
The minimum amount of any
sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,”
and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional
sinking fund payment.” If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 3.05. Each sinking fund payment
shall be applied to the redemption of Securities
of any series as provided for by the terms of Securities of such series.
SECTION 3.05 Satisfaction of
Sinking Fund Payments with Securities.
The Company (i) may deliver
Outstanding Securities of a series (other than any Securities previously called for redemption) and (ii) may apply as a credit Securities
of a series that have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part
of any sinking fund payment with respect to the Securities of such series required to be made pursuant to the terms of such Securities
as provided for by the terms of such series, provided that such Securities have not been previously so credited. Such Securities shall
be received and credited for such purpose by the Trustee at the redemption price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 3.06 Redemption of Securities
for Sinking Fund.
Not less than 45 days prior
to each sinking fund payment date for any series of Securities, the Company will deliver to the Trustee an Officers’ Certificate
specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of the series, the portion thereof,
if any, that is to be satisfied by delivering and crediting Securities of that series pursuant to Section 3.05 and the basis for
such credit and will, together with such Officers’ Certificate, deliver to the Trustee any Securities to be so delivered. Not less
than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 3.02 and cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 3.02. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Section 3.03.
ARTICLE
IV
COVENANTS
SECTION 4.01 Payment of Principal,
Premium and Interest.
The Company will duly and
punctually pay or cause to be paid the principal of (and premium, if any) and interest on the Securities of that series at the time and
place and in the manner provided herein and established with respect to such Securities.
SECTION 4.02 Maintenance of
Office or Agency.
So long as any series of the
Securities remain Outstanding, the Company agrees to maintain an office or agency in the Borough of Manhattan, the City and State of New
York, with respect to each such series and at such other location or locations as may be designated as provided in this Section 4.02,
where (i) Securities of that series may be presented or surrendered for payment, (ii) Securities of that series may be presented as herein
above authorized for registration of transfer and exchange, and (iii) notices and demands to or upon the Company in respect of the Securities
of that series and this Indenture may be given or served, such designation to continue with respect to such office or agency until the
Company shall, by written notice signed by its President or a Vice President and delivered to the trustee, designate some other office
or agency for such purposes or any of them. If at any time the Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such
presentations, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations,
notices and demands.
SECTION 4.03 Paying Agents.
| (a) | If the Company shall appoint one or more paying agents for all or any series
of the Securities, other than the Trustee, the Company will cause each such paying agent to execute and deliver to the Trustee an instrument
in which such agent shall agree with the Trustee, subject to the provisions of this Section: |
| (1) | that it will hold all sums held by it as such agent for the payment of the
principal of (and premium, if any) or interest on the Securities of that series (whether such sums have been paid to it by the Company
or by any other obligor of such Securities) in trust for the benefit of the Persons entitled thereto; |
| (2) | that it will give the Trustee notice of any failure by the Company
(or by any other obligor of such Securities) to make any payment of the principal of (and premium, if any) or interest on the Securities
of that series when the same shall be due and payable; |
| (3) | that it will, at any time during the continuance of any failure referred
to in the preceding paragraph (a)(2) above, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such paying agent; and |
that it will perform
all other duties of paying agent as set forth in this Indenture.
| (b) | If the Company shall act as its own paying agent with respect to any series
of the Securities, it will on or before each due date of the principal of (and premium, if any) or interest on Securities of that series,
set aside, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient with monies held by all other
paying agents to pay such principal (and premium, if any) or interest so becoming due on Securities of that series until such sums shall
be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of such action, or any failure
(by it or any other obligor on such Securities) to take such action. Whenever the Company shall have one or more paying agents for any
series of Securities, it will, prior to each due date of the principal of (and premium, if any) or interest on any Securities of that
series, deposit with the paying agent a sum sufficient to pay the principal (an premium, if any) or interest so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such paying agent is the
Trustee) the Company will promptly notify the Trustee of this action or failure so to act. |
| (c) | Notwithstanding anything in this Section to the contrary, (i)
the agreement to hold sums in trust as provided in this Section is subject to the provisions of Section 11.05, and (ii) the Company
may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or direct
any paying agent to pay, to the Trustee all sums held in trust by the Company or such paying agent, such sums to be held by the Trustee
upon the same terms and conditions as those upon which such sums were held by the Company or such paying agent; and, upon such payment
by any paying agent to the Trustee, such paying agent shall be released from all further liability with respect to such money. |
SECTION 4.04 Appointment to
Fill Vacancy in Office of Trustee.
The Company, whenever necessary
to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall
at all times be a Trustee hereunder.
SECTION 4.05 Compliance with
Consolidation Provisions.
The Company will not, while
any of the Securities remain Outstanding, consolidate with or merge into any other Person, in either case where the Company is not the
survivor of such transaction, or sell or convey all or substantially all of its property to any other company unless the provisions of
Article X hereof are complied with.
ARTICLE
V
SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 5.01 Company to Furnish
Trustee Names and Addresses of Securityholders.
If the Company is not the
Security Registrar, the Company will furnish or use reasonable efforts to cause to be furnished to the Trustee (a) on each regular record
date (as defined in Section 2.03) a list, in such form as the Trustee may reasonably require, of the names and addresses of the holders
of each series of Securities as of such regular record date, provided that the Company shall not be obligated to furnish or cause to furnish
such list at any time that the list shall not differ in any respect from the most recent list furnished to the Trustee by the Company
and (b) at such other times as the Trustee may request in writing within 30 days after the receipt by the Company of any such request,
a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished; provided, however, that,
in either case, no such list need be furnished for any series for which the Trustee shall be the Security Registrar.
SECTION 5.02 Preservation of
Information; Communications with Securityholders.
| (a) | The Trustee shall preserve, in as current a form as is reasonably practicable,
all information as to the names and addresses of the holders of Securities contained in the most recent list furnished to it as provided
in Section 5.01 and as to the names and addresses of holders of Securities received by the Trustee in its capacity as Security Registrar
(if acting in such capacity) and shall otherwise comply with Section 312(a) of the Trust Indenture Act. |
| (b) | The Trustee may destroy any list furnished to it as provided
in Section 5.01 upon receipt of a new list so furnished. |
| (c) | Securityholders may communicate as provided in Section 312(b) of the Trust
Indenture Act with other Securityholders with respect to their rights under this Indenture or under the Securities. |
SECTION 5.03 Reports by the
Company.
| (a) | The Company covenants and agrees to file with the Trustee, within 15 days
after the Company is required to file the same with the Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe)
that the Company may be required to file with the Commission pursuant to Section 13 or |
Section 15(d) of the
Exchange Act; or, if the Company is not required to file information, documents or reports pursuant to either of such sections, then to
file with the Trustee and the Commission, in accordance with the rules and regulations prescribed from time to time by the Commission,
such of the supplementary and periodic information, documents and reports that may be required pursuant to Section 13 of the Exchange
Act, in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules
and regulations; provided, however, the Company shall not be required to deliver to the Trustee any materials for which the Company has
sought and received confidential treatment by the Commission. The Company also shall comply with the other provisions of Section 314(a)
of the Trust Indenture Act.
| (b) | The Company covenants and agrees to file with the Trustee and the Commission,
in accordance with the rules and regulations prescribed from to time by the Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions and covenants provided for in this Indenture as may be required from time
to time by such rules and regulations. |
| (c) | The Company covenants and agrees to transmit by mail, first
class postage prepaid, or reputable over-night delivery service that provides for evidence of receipt, to the Securityholders, as their
names and addresses appear upon the Security Register, within 30 days after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company pursuant to subsections (a) and (b) of this Section as may be
required by rules and regulations prescribed from time to time by the Commission. |
SECTION 5.04 Reports by the
Trustee.
| (a) | The Trustee shall transmit to holders as provided in Section 313 of the
Trust Indenture Act such reports concerning the Trustee and its actions under this Indenture as may be required by Section 313 of the
Trust Indenture Act at the times and in the manner provided by the Trust Indenture Act. |
| (b) | A copy of each such report shall, at the time of such transmission
to Securityholders, be filed by the Trustee with the Company, with each stock exchange upon which any Securities are listed (if so listed)
and, if required by Section 313 of the Trust Indenture Act, also with the Commission. The Company agrees to notify the Trustee when any
Securities become listed on any stock exchange. |
ARTICLE
VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01 Events of Default.
| (a) | Whenever used herein with respect to Securities of a particular series,
“Event of Default” means any one or more of the following events that has occurred and is continuing: |
| (1) | the Company defaults in the payment of any installment of interest upon
any of the Securities of that series, as and when the same shall become due and payable, and continuance of such default for a period
of 90 days; provided, however, that a valid |
extension of an interest
payment period by the Company in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the
payment of interest for this purpose;
| (2) | the Company defaults in the payment of the principal of (or premium, if
any, on) any of the Securities of that series as and when the same shall become due and payable whether at maturity, upon redemption,
by declaration or otherwise, or in any payment required by any sinking or analogous fund established with respect to that series; provided,
however, that a valid extension of the maturity of such Securities in accordance with the terms of any indenture supplemental hereto shall
not constitute a default in the payment of principal or premium, if any; |
| (3) | the Company fails to observe or perform any other of its covenants
or agreements with respect to that series contained in this Indenture or otherwise established with respect to that series of Securities
pursuant to Section 2.01 hereof (other than a covenant or agreement that has been expressly included in this Indenture solely for the
benefit of one or more series of Securities other than such series) for a period of 90 days after the date on which written notice of
such failure, requiring the same to be remedied and stating that such notice is a “Notice of Default” hereunder, shall have
been given to the Company by the Trustee, by registered or certified mail, or to the Company and the Trustee by the holders of not less
than a majority in principal amount of the Securities of that series at the time Outstanding; |
| (4) | the Company pursuant to or within the meaning of any Bankruptcy Law (i)
commences a voluntary case, (ii) consents to the entry of an order for relief against it in an involuntary case, (iii) consents to the
appointment of a Custodian of it or for all or substantially all of its property or (iv) makes a general assignment for the benefit of
its creditors; or |
| (5) | a court of competent jurisdiction enters an order under any
Bankruptcy Law that (i) is for relief against the Company in an involuntary case, (ii) appoints a Custodian of the Company for all or
substantially all of its property, or (iii) orders the liquidation of the Company, and the order or decree remains unstayed and in effect
for 90 consecutive days. |
| (b) | In each and every such case, unless the principal of all the Securities
of that series shall have already become due and payable, either the Trustee or the holders of not less than a majority in aggregate principal
amount of the Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by
such Securityholders), may declare the principal (or, if any Securities of that series are discount securities, that portion of the principal
amount as may be specified in the terms of that series pursuant to Section 2.01(a)(16)) of (and premium, if any, on) and accrued and unpaid
interest, if any, on all the Securities of that series to be due and payable immediately, and upon any such declaration the same shall
become and shall be immediately due and payable. |
| (c) | At any time after the principal of the Securities of that series
shall have been so declared due and payable, and before a judgment or decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the holders of a majority in aggregate principal amount of the Securities of that series then Outstanding
hereunder (or, by action at a meeting of holders of the Securities of such series in accordance with Section |
8.09, the holders of
a majority in aggregate principal amount of the Securities of such series then Outstanding represented at such meeting), by written notice
to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (i) the Company has paid or deposited
with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of that series and the principal
of (and premium, if any, on) any and all Securities of that series that shall have become due otherwise than by acceleration and (ii)
any and all Events of Default under this Indenture with respect to such series, other than the nonpayment of principal of (and premium,
if any, on) and accrued and unpaid interest, if any, on Securities of that series that shall have become due solely because of such acceleration,
shall have been remedied, cured or waived as provided in Section 6.06. No such rescission and annulment shall extend to or shall affect
any subsequent default or impair any right consequent thereon.
| (c) | In case the Trustee shall have proceeded to enforce any right with respect
to Securities of that series under this Indenture and such proceedings shall have been discontinued or abandoned because of such rescission
or annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case, subject to any
determination in such proceedings, the Company, and the Trustee shall be restored respectively to their former positions and rights hereunder,
and all rights, remedies and powers of the Company and the Trustee shall continue as though no such proceedings had been taken. |
SECTION 6.02 Collection of Indebtedness
and Suits for Enforcement by Trustee.
| (a) | The Company covenants that (1) in case it shall default in the payment of
any installment of interest on any of the Securities of a series, or any payment required by any sinking or analogous fund established
with respect to that series as and when the same shall have become due and payable, and such default shall have continued for a period
of 90 Business Days, or (2) in case it shall default in the payment of the principal of (or premium, if any, on) any of the Securities
of a series when the same shall have become due and payable, whether upon maturity of the Securities of a series or upon redemption or
upon declaration or otherwise, then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the holders of
the Securities of that series, the whole amount that then shall have been become due and payable on all such Securities for principal
(and premium, if any) or interest, or both, as the case may be, with interest upon the overdue principal (and premium, if any) and (to
the extent that payment of such interest is enforceable under applicable law) upon overdue installments of interest at the rate per annum
expressed in the Securities of that series; and, in addition thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, and the amount payable to the Trustee under Section 7.06. |
| (b) | If the Company shall fail to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action
or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding
to judgment or final decree, and may enforce any such judgment or final decree against the Company or other obligor upon the Securities
of that series and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company
or other obligor upon the Securities of that series, wherever situated. |
| (c) | In case of any receivership, insolvency, liquidation, bankruptcy, reorganization,
readjustment, arrangement, composition or judicial proceedings affected the Company, or its creditors or property, the Trustee shall have
power to intervene in such proceedings and take any action therein that may be permitted by the court and shall (except as may be otherwise
provided by law) be entitled to file such proofs of claim and other papers and documents as may be necessary or advisable in order to
have the claims of the Trustee and of the holders of Securities of such series allowed for the entire amount due and payable by the Company
under this Indenture at the date of institution of such proceedings and for any additional amount that may become due and payable by the
Company after such date, and to collect and receive any moneys or other property payable or deliverable on any such claim, and to distribute
the same after the deduction of the amount payable to the Trustee under Section 7.06; and any receiver, assignee or trustee in bankruptcy
or reorganization is hereby authorized by each of the holders of Securities of such series to make such payments to the Trustee, and,
in the event that the Trustee shall consent to the making of such payments directly to such Securityholders, to pay to the Trustee any
amount due it under Section 7.06. |
| (d) | All rights of action and of asserting claims under this Indenture,
or under any of the terms established with respect to Securities of that series, may be enforced by the Trustee without the possession
of any of such Securities, or the production thereof at any trial or other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after
provision for payment to the Trustee of any amounts due under Section 7.06, be for the ratable benefit of the holders of the Securities
of such series. |
In case of an Event of Default
hereunder, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or
in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of
the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture
or by law.
Nothing contained herein shall
be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities of that series or the rights of any holder thereof or to authorize the
Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
SECTION 6.03 Application of
Moneys Collected.
Any moneys collected by the
Trustee pursuant to this Article with respect to a particular series of Securities shall be applied in the following order, at the date
or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal (or premium, if any) or interest,
upon presentation of the Securities of that series, and notation thereon the payment, if only partially paid, and upon surrender thereof
if fully paid:
| FIRST: | To the payment of costs and expenses of collection and of all amounts payable to the Trustee under Section
7.06; and |
| SECOND: | To the payment of the amounts then due and unpaid upon Securities of such series for principal (and premium,
if any) and interest, in respect of which or for the benefit of which such money has been collected, ratably, without preference or |
priority
of any kind, according to the amounts due and payable on such Securities for principal (and premium, if any) and interest, respectively.
SECTION 6.04 Limitation on Suits.
No holder of any Security
of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless (i) such holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance
thereof with respect to the Securities of such series specifying such Event of Default, as hereinbefore provided; (ii) the holders of
not less than a majority in aggregate principal amount of the Securities of such series then Outstanding shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name as trustee hereunder; (iii) such holder or holders shall
have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein
or thereby; and (iv) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity, shall have failed to institute
any such action, suit or proceeding and (v) during such 60 day period, the holders of a majority in principal amount of the Securities
of that series (or such amount as shall have acted at a meeting of the holders of Securities of such series pursuant to the provisions
of this Indenture) do not give the Trustee a direction inconsistent with the request; provided, however, that no one or more of such holders
may use this Indenture to prejudice the rights of another holder or to obtain preference or priority over another holder.
Notwithstanding anything contained
herein to the contrary, any other provisions of this Indenture, the right of any holder of any Security to receive payment of the principal
of (and premium, if any) and interest on such Security, as therein provided, on or after the respective due dates expressed in such Security
(or in the case of redemption, on the redemption date), or to institute suit for the enforcement of any such payment on or after such
respective dates or redemption date, shall not be impaired or affected without the consent of such holder and by accepting a Security
hereunder it is expressly understood, intended and covenanted by the taker and holder of every Security of such series with every other
such taker and holder and the Trustee, that no one or more holders of Securities of such series shall have any right in any manner whatsoever
by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of the holders of any other of
such Securities, or to obtain or seek to obtain priority over or preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all holders of Securities of such series.
For the protection and enforcement of the provisions of this Section, each and every Securityholder and the Trustee shall be entitled
to such relief as can be given either at law or in equity.
SECTION 6.05 Rights and Remedies
Cumulative; Delay or Omission Not Waiver.
| (a) | Except as otherwise provided in Section 2.07, all powers and remedies given
by this Article to the Trustee or to the Securityholders shall, to the extent permitted by law, be deemed cumulative and not exclusive
of any other powers and remedies available to the Trustee or the holders of the Securities, by judicial proceedings or otherwise, to enforce
the performance or observance of the covenants and agreements contained in this Indenture or otherwise established with respect to such
Securities. |
| (b) | No delay or omission of the Trustee or of any holder of any
of the Securities to exercise any right or power accruing upon any Event of Default occurring and continuing as aforesaid shall impair
any such right or power, or shall be construed to be a waiver of any such default or on acquiescence therein; and, subject to the provisions
of Section 6.04, every power and remedy given by this Article or by law to the Trustee or the |
Securityholders may
be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Securityholders.
SECTION 6.06 Control by Securityholders.
The holders of a majority
in aggregate principal amount of the Securities of any series at the time Outstanding, determined in accordance with Section 8.01, shall
have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee with respect to such series; provided, however, that such direction shall not be in conflict
with any rule of law or with this Indenture or be unduly prejudicial to the rights of holders of Securities of any other series at the
time Outstanding determined in accordance with Section 8.01. Subject to the provisions of Section 7.01, the Trustee shall have the
right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer or Officers of the Trustee,
determine that the proceeding so directed would involve the Trustee in personal liability. The holders either (a) through the written
consent of not less than a majority in aggregate principal amount of the Securities of any series at the time Outstanding or (b) by action
at a meeting of holders of the Securities of such series in accordance with Section 8.09, by the holders of a majority in aggregate principal
amount of the Securities of such series then Outstanding represented at such meeting, may on behalf of the holders of all of the Securities
of such series waive any past default in the performance of any of the covenants contained herein or established pursuant to Section 2.01
with respect to such series and its consequences, except a default in the payment of the principal of, or premium, if any, or interest
on, any of the Securities of that series as and when the same shall become due by the terms of such Securities otherwise than by acceleration
(unless such default has been cured and a sum sufficient to pay all matured installments of interest and principal and any premium has
been deposited with the Trustee (in accordance with Section 6.01(c)) and except in respect a provision hereof which, under Section 9.02,
cannot be modified or amended without the consent of the holders of each Outstanding Security affected; provided however that this Section
shall not limit the right of holders of Securities of a series to rescind and annul any acceleration as set forth in Section 6.01. Upon
any such waiver, the default covered thereby shall be deemed to be cured for all purposes of this Indenture and the Company, the Trustee
and the holders of the Securities of such series shall be restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or impair any right consequent thereon. The provisions which otherwise would
be automatically deemed to be contained in this Indenture pursuant to Section (316)(a)(1) of the Trust Indenture Act are hereby expressly
excluded from this Indenture, except to the extent such provisions are expressly included herein.
SECTION 6.07 Undertaking to
Pay Costs.
All parties to this Indenture
agree, and each holder of any Securities by such holder’s acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any
party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder, or
group of Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities of any series, or to any suit
instituted by any Securityholder for the enforcement of the payment of the principal of (or premium, if any) or interest on any Security
of such series, on or after the respective due dates expressed in such Security or established pursuant to this Indenture.
ARTICLE
VII
CONCERNING THE TRUSTEE
SECTION 7.01 Certain Duties
and Responsibilities of Trustee.
| (a) | The Trustee, prior to the occurrence of an Event of Default with respect
to the Securities of a series and after the curing of all Events of Default with respect to the Securities of that series that may have
occurred, shall undertake to perform with respect to the Securities of such series such duties and only such duties as are specifically
set forth in this Indenture, and no implied covenants shall be read into this Indenture against the Trustee. In case an Event of Default
with respect to the Securities of a series has occurred (that has not been cured or waived), the Trustee shall exercise with respect to
Securities of that series such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. |
| (b) | No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: |
| (1) | prior to the occurrence of an Event of Default with respect to the Securities
of a series and after the curing or waiving of all such Events of Default with respect to that series that may have occurred: |
| (i) | the duties and obligations of the Trustee shall with respect to the Securities
of such series be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable with respect to the
Securities of such series except for the performance of such duties and obligations as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this Indenture against the Trustee; and |
| (ii) | in the absence of bad faith on the part of the Trustee, the
Trustee may with respect to the Securities of such series conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirement of
this Indenture; |
| (2) | the Trustee shall not be liable for any error of judgment made in good faith
by a Responsible Officer or Responsible Officers of the Trustee, unless it shall be proved that the Trustee, was negligent in ascertaining
the pertinent facts; |
| (3) | the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction of the holders of not less than a majority in principal amount
of the Securities of any series at the time Outstanding relating to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred |
upon the Trustee under
this Indenture with respect to the Securities of that series; and
| (4) | None of the provisions contained in this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there is reasonable ground for believing that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Indenture or adequate indemnity against such risk is not reasonably assured to it. |
SECTION 7.02 Certain Rights
of Trustee.
Except as otherwise provided in Section 7.01:
| (a) | The Trustee may rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, security
or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; |
| (b) | Any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by a Board Resolution or an instrument signed in the name of the Company, by the President or
any Vice President and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer thereof (unless other evidence
in respect thereof is specifically prescribed herein); |
| (c) | The Trustee may consult with counsel and the written advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted
hereunder in good faith and in reliance thereon; |
| (d) | The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders, pursuant to the
provisions of this Indenture, unless such Securityholders shall have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities that may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee
of the obligation, upon the occurrence of an Event of Default with respect to a series of the Securities (that has not been cured or
waived) to exercise with respect to Securities of that series such of the rights and powers vested in it by this Indenture, and to use
the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of
his own affairs; |
| (e) | The Trustee shall not be liable for any action taken or omitted to be taken
by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; |
| (f) | The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order,
approval, bond, security, or other papers or documents, unless requested in writing so to do by the holders of not less than a majority
in principal amount of the Outstanding Securities of the particular series affected thereby (determined as provided in Section 8.04);
provided, however, that if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred
by it in the making of such investigation is, in |
the opinion of the Trustee,
not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable
indemnity against such costs, expenses or liabilities as a condition to so proceeding. The reasonable expense of every such examination
shall be paid by the Company or, if paid by the Trustee, shall be repaid by the Company upon demand; and
| (g) | The Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it hereunder. |
SECTION 7.03 Trustee Not Responsible
for Recitals or Issuance of Securities.
| (a) | The recitals contained herein and in the Securities shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for the correctness of the same. |
| (b) | The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities. |
| (c) | The Trustee shall not be accountable for the use or application by the Company
of any of the Securities or of the proceeds of such Securities, or for the use or application of any moneys paid over by the Trustee in
accordance with any provision of this Indenture or established pursuant to Section 2.01, or for the use or application of any moneys received
by any paying agent other than the Trustee. |
SECTION 7.04 May Hold Securities.
The Trustee or any paying
agent or Security Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights
it would have if it were not Trustee, paying agent or Security Registrar.
SECTION 7.05 Moneys Held in
Trust.
Subject to the provisions
of Section 11.05, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes
for which they were received, but need not be segregated from other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any moneys received by it hereunder except such as it may agree with the Company to pay thereon.
SECTION 7.06 Compensation and
Reimbursement.
| (a) | The Company covenants and agrees to pay to the Trustee, and the Trustee
shall be entitled to, such reasonable compensation (which shall not be limited by any provision of law in regard to the compensation of
a trustee of an express trust), as the Company, and the Trustee may from time to time agree in writing, for all services rendered by it
in the execution of the trusts hereby created and in the exercise and performance of any of the powers and duties hereunder of the Trustee,
and, except as otherwise expressly provided herein, the Company will pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including
the reasonable compensation and the expenses and disbursements of its counsel and of all Persons not regularly in its employ) |
except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The Company also covenants to indemnify the Trustee (and its officers,
agents, directors and employees) for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad
faith on the part of the Trustee and arising out of or in connection with the acceptance or administration of this trust, including the
costs and expenses of defending itself against any claim of liability in the premises.
| (b) | The obligations of the Company under this Section to compensate and indemnify
the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to that of the Securities upon all property and funds held or collected
by the Trustee as such, except funds held in trust for the benefit of the holders of particular Securities. |
SECTION 7.07 Reliance on Officers’
Certificate.
Except as otherwise provided
in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that
a matter be proved or established prior to taking or suffering or omitting to take any action hereunder, such matter (unless other evidence
in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed
to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee and such certificate, in the absence
of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted
to be taken by it under the provisions of this Indenture upon the faith thereof.
SECTION 7.08 Disqualification;
Conflicting Interests.
If the Trustee has or shall
acquire any “conflicting interest” within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the
Company shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
SECTION 7.09 Corporate Trustee
Required; Eligibility.
There shall at all times be
a Trustee with respect to the Securities issued hereunder which shall at all times be a corporation organized and doing business under
the laws of the United States of America or any State or Territory thereof or of the District of Columbia, or a corporation or other Person
permitted to act as trustee by the Commission, authorized under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least 50 million U.S. dollars ($50,000,000), and subject to supervision or examination by Federal, State, Territorial,
or District of Columbia authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. The Company may
not, nor may any Person directly or indirectly controlling, controlled by, or under common control with the Company, serve as Trustee.
In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.10.
SECTION 7.10 Resignation and
Removal; Appointment of Successor.
| (a) | The Trustee or any successor hereafter appointed, may at any time resign
with respect to the Securities of one or more series by giving written notice thereof to the Company and |
by transmitting notice
of resignation by mail, first class postage prepaid, to the Securityholders of such series, as their names and addresses appear upon the
Security Register. Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee with respect to Securities
of such series by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the mailing of such notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee with respect to Securities of such series, or any Securityholder of that series
who has been a bona fide holder of a Security or Securities for at least six months may on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it
may deem proper and prescribe, appoint a successor trustee.
| (b) | In case at any time any one of the following shall occur: |
| (1) | the Trustee shall fail to comply with the provisions of Section 7.08 after
written request therefor by the Company or by any Securityholder who has been a bona fide holder of a Security or Securities for at least
six months; or |
| (2) | the Trustee shall cease to be eligible in accordance with the
provisions of Section 7.09 and shall fail to resign after written request therefor by the Company or by any such Securityholder; or |
| (3) | the Trustee shall become incapable of acting, or shall be adjudged a bankrupt
or insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the Trustee or of its property shall be appointed or consented
to, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, the Company may remove the Trustee with respect to all Securities and appoint a successor
trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered
to the Trustee so removed and one copy to the successor trustee, or, unless the Trustee’s duty to resign is stayed as provided herein,
any Securityholder who has been a bona fide holder of a Security or Securities for at least six months may, on behalf of that holder and
all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor
trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor
trustee. |
| (c) | The holders of a majority in aggregate principal amount of the Securities
of any series at the time Outstanding may at any time remove the Trustee with respect to such series by so notifying the Trustee and the
Company and may appoint a successor Trustee for such series with the consent of the Company. |
| (d) | Any resignation or removal of the Trustee and appointment of
a successor trustee with respect to the Securities of a series pursuant to any of the provisions of this Section shall become effective
upon acceptance of appointment by the successor trustee as provided in Section 7.11. |
| (e) | Any successor trustee appointed pursuant to this Section may be appointed
with respect to the Securities of one or more series or all of such series, and at any time there shall be only one Trustee with respect
to the Securities of any particular series. |
SECTION 7.11 Acceptance of Appointment
By Successor.
| (a) | In case of the appointment hereunder of a successor trustee with respect
to all Securities, every such successor trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective
and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Company or the successor trustee, such retiring Trustee shall, upon payment of its
charges, execute and deliver an instrument transferring to such successor trustee all the rights, powers, and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor trustee all property and money held by such retiring Trustee hereunder. |
| (b) | In case of the appointment hereunder of a successor trustee
with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor trustee with
respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor trustee
shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor trustee relates, (2) shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities
of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3)
shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust, that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee and that no Trustee shall be responsible for any act or failure
to act on the part of any other Trustee hereunder; and upon the execution and delivery of such supplemental indenture the resignation
or removal of the retiring Trustee shall become effective to the extent provided therein, such retiring Trustee shall with respect to
the Securities of that or those series to which the appointment of such successor trustee relates have no further responsibility for
the exercise of rights and powers or for the performance of the duties and obligations vested in the Trustee under this Indenture, and
each such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor trustee
relates; but, on request of the Company or any successor trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor trustee, to the extent contemplated by such supplemental indenture, the property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment of such successor trustee relates. |
| (c) | Upon request of any such successor trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to such successor trustee |
all such rights, powers
and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
| (d) | No successor trustee shall accept its appointment unless at the time of
such acceptance such successor trustee shall be qualified and eligible under this Article. |
| (e) | Upon acceptance of appointment by a successor trustee as provided
in this Section, the Company shall transmit notice of the succession of such trustee hereunder by mail, first class postage prepaid,
to the Securityholders, as their names and addresses appear upon the Security Register. If the Company fails to transmit such notice
within ten days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be transmitted
at the expense of the Company. |
SECTION 7.12 Merger, Conversion,
Consolidation or Succession to Business.
Any corporation into which
the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation succeeding to the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided that such corporation shall be qualified under the provisions of Section 7.08
and eligible under the provisions of Section 7.09, without the execution or filing of any paper or any further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated
such Securities.
SECTION 7.13 Preferential Collection
of Claims Against the Company.
The Trustee shall comply with
Section 311(a) of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act.
A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
ARTICLE
VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01 Evidence of Action
by Securityholders.
Whenever in this Indenture
it is provided that the holders of a majority or specified percentage in aggregate principal amount of the Securities of a particular
series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of
any other action), the fact that at the time of taking any such action the holders of such majority or specified percentage of that series
have joined therein may be evidenced by any instrument or any number of instruments of similar tenor executed by such holders of Securities
of that series in Person or by agent or proxy appointed in writing.
If the Company shall solicit
from the Securityholders of any series any request, demand, authorization, direction, notice, consent, waiver or other action, the Company
may, at its option, as evidenced by an Officers’ Certificate, fix in advance a record date for such series for the determination
of Securityholders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action, but the Company
shall have no obligation to do so. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent,
waiver or other action may be given before or after the record date, but only the Securityholders of record at the close of business on
the record date shall be deemed to be Securityholders for the purposes of determining whether Securityholders of the requisite proportion
of Outstanding Securities of that series have authorized or agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other action, and for that purpose the Outstanding Securities of that series shall be computed as of the record date;
provided, however, that no such authorization, agreement or consent by such Securityholders on the record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date.
SECTION 8.02 Proof of Execution
by Securityholders.
Subject to the provisions
of Section 7.01, proof of the execution of any instrument by a Securityholder (such proof will not require notarization) or his agent
or proxy and proof of the holding by any Person of any of the Securities shall be sufficient if made in the following manner:
| (a) | The fact and date of the execution by any such Person of any instrument
may be proved in any reasonable manner acceptable to the Trustee. |
| (b) | The ownership of Securities shall be proved by the Security
Register of such Securities or by a certificate of the Security Registrar thereof. |
| (c) | The Trustee may require such additional proof of any matter referred to
in this Section as it shall deem necessary. |
SECTION 8.03 Who May be Deemed
Owners.
Prior to the due presentment
for registration of transfer of any Security, the Company, the Trustee, any paying agent and any Security Registrar may deem and treat
the Person in whose name such Security shall be registered upon the books of the Company as the absolute owner of such Security (whether
or not such Security shall be overdue and notwithstanding any notice of ownership or writing thereon made by anyone other than the Security
Registrar) for the purpose of receiving payment of or on account of the principal of, premium, if any, and (subject to Section 2.03)
interest on such Security and for all other purposes; and neither the Company nor the Trustee nor any paying agent nor any Security Registrar
shall be affected by any notice to the contrary.
SECTION 8.04 Certain Securities
Owned by Company Disregarded.
In determining whether the
holders of the requisite aggregate principal amount of Securities of a particular series have concurred in any direction, consent of waiver
under this Indenture, the Securities of that series that are owned by the Company or any other obligor on the Securities of that series
or by any Person directly or indirectly controlling or controlled by or under common control with the Company or any other obligor on
the Securities of that series shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except
that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent or waiver, only Securities
of such series that the Trustee actually knows are so owned shall be so disregarded. The Securities so owned that have been pledged in
good faith may be regarded as Outstanding for the purposes of this Section, if the pledgee shall establish to the satisfaction of the
Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not a Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the Company or any such other obligor. In case of a dispute
as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.
SECTION 8.05 Actions Binding
on Future Securityholders.
At any time prior to (but
not after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the holders of the majority
or percentage in aggregate principal amount of the Securities of a particular series specified in this Indenture in connection with such
action, any holder of a Security of that series that is shown by the evidence to be included in the Securities the holders of which have
consented to such action may, by filing written notice with the Trustee, and upon proof of holding as provided in Section 8.02, revoke
such action so far as concerns such Security. Except as aforesaid any such action taken by the holder of any Security shall be conclusive
and binding upon such holder and upon all future holders and owners of such Security, and of any Security issued in exchange therefor,
on registration of transfer thereof or in place thereof, irrespective of whether or not any notation in regard thereto is made upon such
Security. Any action taken by the holders of the majority or percentage in aggregate principal amount of the Securities of a particular
series specified in this Indenture in connection with such action shall be conclusively binding upon the Company, the Trustee and the
holders of all the Securities of that series.
SECTION 8.06 Purposes for Which
Meetings May Be Called.
A meeting of holders of any
series of Securities may be called at any time and from time to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by holders of
such series of Securities.
Notwithstanding anything contained
in this Article VIII, the Trustee may, during the pendency of a Default or an Event of Default, call a meeting of holders of any series
of Securities in accordance with its standard practices.
SECTION 8.07 Call Notice and
Place of Meetings.
| (a) | The Trustee may at any time call a meeting of holders of any series of Securities
for any purpose specified in Section 8.06 hereof, to be held at such time and at such place in The City of New York or Boston, Massachusetts.
Notice of every meeting of holders of any series of Securities, setting forth the time and the place of such meeting, in general terms
the action proposed to be taken at such meeting and the percentage of the principal amount of the Outstanding Securities of such series
which shall constitute a quorum at such meeting, shall be given, in the manner provided in Section 13.04 hereof, not less than 21 nor
more than 180 days prior to the date fixed for the meeting to holders of Outstanding Securities of such series. |
| (b) | In case at any time the Company, pursuant to a Board Resolution,
or the holders of at least 10% in principal amount of the Outstanding Securities of any series shall have requested the Trustee to call
a meeting of the holders of Securities of such series for any purpose specified in Section 8.06 hereof, by written request setting forth
in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the holders of Securities of such series in the amount specified, as the case may be, may determine
the time and the place in The City of New York or Boston, Massachusetts for such meeting and may call such meeting for such purposes
by giving notice thereof as provided in paragraph (a) of this Section. |
SECTION 8.08 Persons Entitled
To Vote at Meetings.
To be entitled to vote at
any meeting of holders of Securities of a given series, a Person shall be (a) a holder of one or more Outstanding Securities of such series
or (b) a Person appointed by an instrument in writing as proxy for a holder or holders of one or more Outstanding Securities of such series
by such holder or holders. The only Persons who shall be entitled to be present or to speak at any meeting of holders shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 8.09 Quorum; Action.
The Persons entitled to vote
a majority in aggregate principal amount of the Outstanding Securities of a given series shall constitute a quorum with respect to a meeting
of holders of Outstanding Securities of such series. In the absence of a quorum within 30 minutes of the time appointed for any such meeting,
the meeting shall, if convened at the request of holders of Securities of such series, be dissolved. In any other case, the meeting may
be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting.
In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than
10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening of
any adjourned meeting shall be given as provided in Section 8.07(a) hereof, except that such notice need be given only once and not less
than five days prior to the date on which the meeting is scheduled to be reconvened.
At a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid, any resolution and all matters (except as limited by the proviso
to the first paragraph of Section 9.02 hereof) shall be effectively passed and decided if passed or decided by the Persons entitled to
vote not less than a majority in aggregate principal amount of Outstanding Securities of a series represented and voting at such meeting
with respect to a meeting of holders of Outstanding Securities of such series.
Any resolution passed or decisions
taken at any meeting of holders of Securities duly held in accordance with this Section shall be binding on all the holders of Securities
of such series, whether or not present or represented at the meeting.
SECTION 8.10 Determination of
Voting Rights; Conduct and Adjournment of Meetings.
| (a) | Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of holders of Securities in regard to proof of the holding of
Securities and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination
of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall
deem appropriate. |
| (b) | The Trustee shall, by an instrument in writing, appoint a temporary
chairman (which may be the Trustee) of the meeting, unless the meeting shall have been called by the Company or by holders of Securities
of a given series as provided in Section 8.07(b) hereof, in which case the Company or the holders of Securities of such series calling
the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of
the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding Securities of
such series represented at the meeting. |
| (c) | At any meeting, each holder of a Security of the series in respect of which
such meeting is being held or proxy shall be entitled to one vote for each $1,000 principal amount of Securities of such series held or
represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security of such series
challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a holder of a Security of such series or proxy. |
| (d) | Any meeting of holders of Securities duly called pursuant to
Section 8.07 hereof at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in principal
amount of the Outstanding Securities of the series in respect of which such meeting is being held represented at the meeting, and the
meeting may be held as so adjourned without further notice. |
SECTION 8.11 Counting Votes
and Recording Action of Meetings.
The vote upon any resolution
submitted to any meeting of holders of Securities of a given series shall be by written ballots on which shall be subscribed the signatures
of the holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding
Securities of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of each
meeting of holders of Securities of such series shall be prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons having
knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section
8.07 hereof and, if applicable, Section 8.09 hereof. Each copy shall be signed and verified by the affidavits of the permanent chairman
and secretary of the meeting and one such copy shall be delivered to the Company and another to the Trustee to be preserved by the Trustee,
the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
ARTICLE
IX
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures
Without the Consent of Securityholders.
In addition to any supplemental
indenture otherwise authorized by this Indenture, the Company and the Trustee may from time to time and at any time enter into an indenture
or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as then in effect), without the consent
of the Securityholders, for one or more of the following purposes:
| (a) | cure any ambiguity, correct or supplement any provision herein which may
be inconsistent with any other provision herein or which is otherwise defective, or make any other provisions with respect to matters
or questions arising under this Indenture which the Company and the Trustee may deem necessary or desirable and which shall not be inconsistent
with the provisions of this Indenture; |
| (b) | to comply with Article X; |
| (c) | to provide for uncertificated Securities in addition to or in place of certificated
Securities; |
| (d) | to add to the covenants of the Company for the benefit of the
holders of all or any Series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating
that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred
upon the Company; |
| (e) | to add to, delete from, or revise the conditions, limitations, and restrictions
on the authorized amount, terms, or purposes of issue, authentication, and delivery of Securities, as herein set forth; |
| (f) | to make any change that does not adversely affect the rights
of any Securityholder in any material respect; |
| (g) | to provide for the issuance of and establish the form and terms and conditions
of the Securities of any series as provided in Section 2.01, to establish the form of any certifications required to be furnished pursuant
to the terms of this Indenture or any series of Securities, or to add to the rights of the holders of any series of Securities; or |
| (h) | comply with the requirements of the Commission in order to effect
or maintain the qualification of this Indenture under the Trust Indenture Act. |
The Trustee is hereby authorized
to join with the Company in the execution of any such supplemental indenture, and to make any further appropriate agreements and stipulations
that may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental indenture that affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture
authorized by the provisions of this Section may be executed by the Company and the Trustee without the consent of the holders of any
of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 9.02.
SECTION 9.02 Supplemental Indentures
With Consent of Securityholders.
With the written consent of
the holders of at least a majority in aggregate principal amount of the Outstanding Securities of any series or by action at a meeting
of holders of the Securities of such series in accordance with Section 8.09, by the holders of a majority in aggregate principal amount
of the Securities of such series then Outstanding represented at such meeting, the Company, when authorized by Board Resolutions, and
the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as then in effect) for the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner not covered by Section 9.01 the
rights of the holders of the Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the holders of each Security then Outstanding and affected thereby, (i) extend the fixed maturity of any Securities
of any series, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce
any premium payable upon the redemption thereof, (ii) reduce the aforesaid percentage of Securities, the holders of which are required
to consent to any such supplemental indenture, or any consent or waiver, (iii) reduce the principal amount of discount securities payable
upon acceleration of the maturity of any Securities of any series or (iv) make the principal of or premium or interest on any Security
of a series payable in currency or currency units other than that stated in the Securities of such series.
It shall not be necessary
for the consent of the Securityholders of any series affected thereby under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
SECTION 9.03 Effect of Supplemental
Indentures.
Upon the execution of any
supplemental indenture pursuant to the provisions of this Article or of Section 10.01, this Indenture shall, with respect to such series,
be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the holders of Securities of the series affected thereby shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
SECTION 9.04 Securities Affected
by Supplemental Indentures.
Securities of any series affected
by a supplemental indenture, authenticated and delivered after the execution of such supplemental indenture pursuant to the provisions
of this Article or of Section 10.01, may bear a notation in form approved by the Company, provided such form meets the requirements of
any exchange upon which such series may be listed, as to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of that series so modified as to conform, in the opinion of the Board of Directors of the Company, to any
modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated by the Trustee
and delivered in exchange for the Securities of that series then Outstanding.
SECTION 9.05 Execution of Supplemental
Indentures.
Upon the request of the Company,
accompanied by its Board Resolutions authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee
of evidence of the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be obligated to enter into such supplemental
indenture. The Trustee, subject to the provisions of Section 7.01, may receive an Opinion of Counsel as conclusive evidence that any supplemental
indenture executed pursuant to this Article is authorized or permitted by, and conforms to, the terms of this Article and that it is proper
for the Trustee under the provisions of this Article to join in the execution thereof; provided, however, that such Opinion of Counsel
need not be provided in connection with the execution of a supplemental indenture that establishes the terms of a series of Securities
pursuant to Section 2.01 hereof.
Promptly after the execution
by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Trustee shall transmit by
mail, first class postage prepaid, a notice, setting forth in general terms the substance of such supplemental indenture, to the Securityholders
of all series affected thereby as their names and addresses appear upon the Security Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
ARTICLE
X
SUCCESSOR ENTITY
SECTION 10.01 Company May Consolidate,
Etc.
Nothing contained in this
Indenture or in any of the Securities shall prevent any consolidation or merger of the Company with or into any other Person (whether
or not affiliated with the Company) or successive consolidations or mergers in which the Company or its successor or successors shall
be a party or parties, or shall prevent any sale, conveyance, transfer or other disposition of the property of the Company or its successor
or successors as an entirety, or substantially as an entirety, to any other corporation (whether or not affiliated with the Company or
its successor or successors) authorized to acquire and operate the same; provided, however, the Company hereby covenants and agrees that,
upon any such consolidation or merger (in each case, if the Company is not the survivor of such transaction), sale, conveyance, transfer
or other disposition, the due and punctual payment of the principal of (premium, if any) and interest on all of the Securities of all
series in accordance with the terms of each series, according to their tenor and the due and punctual performance and observance of all
the covenants and conditions of this Indenture with respect to each series or established with respect to such series pursuant to Section 2.01
to be kept or performed by the Company shall be expressly assumed, by supplemental indenture (which shall conform to the provisions of
the Trust Indenture Act, as then in effect) satisfactory in form to the Trustee executed and delivered to the Trustee by the entity formed
by such consolidation, or into which the Company shall have been merged, or by the entity which shall have acquired such property.
SECTION 10.02 Successor Entity
Substituted.
| (a) | In case of any such consolidation, merger, sale, conveyance, transfer or
other disposition and upon the assumption by the successor entity by supplemental indenture, executed and delivered to the Trustee and
satisfactory in form to the Trustee, of the due and punctual payment of the principal of, premium, if any, and interest on all of the
Securities of all series Outstanding and the due and punctual performance of all of the covenants and conditions of this Indenture or
established with respect to each series of the Securities pursuant to Section 2.01 to be performed by the Company with respect to each
series, such successor entity shall succeed to and be substituted for the Company with the same effect as if it had been named as the
Company herein, and thereupon the predecessor corporation shall be relieved of all obligations and covenants under this Indenture and
the Securities. |
| (b) | In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to
be issued as may be appropriate. |
| (c) | Nothing contained in this Article shall require any action by the Company
in the case of a consolidation or merger of any Person into the Company where the Company is the survivor of such transaction, or the
acquisition by the Company, by purchase or otherwise, of all or any part of the property of any other Person (whether or not affiliated
with the Company). |
SECTION 10.03 Evidence of Consolidation,
Etc. to Trustee.
The Trustee, subject to the
provisions of Section 7.01, may receive an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale, conveyance,
transfer or other disposition, and any such assumption, comply with the provisions of this Article.
ARTICLE
XI
SATISFACTION AND DISCHARGE
SECTION 11.01 Satisfaction and
Discharge of Indenture.
If at any time: (a) the Company
shall have delivered to the Trustee for cancellation all Securities of a series theretofore authenticated (other than any Securities that
shall have been destroyed, lost or stolen and that shall have been replaced or paid as provided in Section 2.07) and Securities for whose
payment money or Governmental Obligations have theretofore been deposited in trust or segregated and held in trust by the Company (and
thereupon repaid to the Company or discharged from such trust, as provided in Section 11.05); or (b) all such Securities of a particular
series not theretofore delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become due
and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the
giving of notice of redemption, and the Company shall deposit or cause to be deposited with the Trustee as trust funds the entire amount
in moneys or Governmental Obligations sufficient or a combination thereof, sufficient (assuming that no tax liability will be imposed
on the Trustee) in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay at maturity or upon redemption all Securities of that series not theretofore delivered to the
Trustee for cancellation, including principal (and premium, if any) and interest due or to become due to such date of maturity or date
fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other sums payable hereunder with
respect to such series by the Company then this Indenture shall thereupon cease to be of further effect with respect to such series except
for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that shall survive until the date of maturity or redemption
date, as the case may be, and Sections 7.06, 11.05 and 12.01, that shall survive to such date and thereafter, and the Trustee, on demand
of the Company and at the cost and expense of the Company shall execute proper instruments acknowledging satisfaction of and discharging
this Indenture with respect to such series.
SECTION 11.02 Discharge of Obligations.
If at any time all such Securities
of a particular series not heretofore delivered to the Trustee for cancellation or that have not become due and payable as described in
Section 11.01 shall have been paid by the Company by depositing irrevocably with the Trustee as trust funds moneys or an amount of Governmental
Obligations sufficient to pay at maturity or upon redemption all such Securities of that series not theretofore delivered to the Trustee
for cancellation, including principal (and premium, if any) and interest due or to become due to such date of maturity or date fixed for
redemption, as the case may be, and if the Company shall also pay or cause to be paid all other sums payable hereunder by the Company
with respect to such series, then after the date such moneys or Governmental Obligations, as the case may be, are deposited with the Trustee
the obligations of the Company under this Indenture with respect to such series shall cease to be of further effect except for the provisions
of Sections 2.03, 2.05, 2.07, 4,01, 4.02, 4.03, 7.06, 7.10 and 11.05 hereof that shall survive until such Securities shall mature and
be paid thereafter, Sections 7.06 and 11.05 shall survive.
SECTION 11.03 Deposited Moneys
to be Held in Trust.
Subject to Section 11.05,
all moneys or Governmental Obligations deposited with the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and shall
be available for payment as due, either directly or through any paying agent (including the Company acting as its own paying agent), to
the holders of the particular series of Securities for the payment or redemption of which such moneys or Governmental Obligations have
been deposited with the Trustee.
SECTION 11.04 Payment of Moneys
Held by Paying Agents.
In connection with the satisfaction
and discharge of this Indenture all moneys or Governmental Obligations then held by any paying agent under the provisions of this Indenture
shall, upon demand of the Company, be paid to the Trustee and thereupon such paying agent shall be released from all further liability
with respect to such moneys or Governmental Obligations.
SECTION 11.05 Repayment to Company.
Any moneys or Governmental
Obligations deposited with any paying agent or the Trustee, or then held by the Company, in trust for payment of principal of or premium
or interest on the Securities of a particular series that are not applied but remain unclaimed by the holders of such Securities for two
years after the date upon which the principal of (and premium, if any) or interest on such Securities shall have respectively become due
and payable, shall be repaid to the Company or (if then held by the Company) shall be discharged from such trust in each case, promptly
after the end of any such two-year period or, at the request of the Company, on a later date specified by the Company; and thereupon the
paying agent and the Trustee shall be released from all further liability with respect to such moneys or Governmental Obligations, and
the holder of any of the Securities entitled to receive such payment shall thereafter, as an unsecured general creditor, look only to
the Company for the payment thereof.
ARTICLE
XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01 No Recourse.
No recourse under or upon
any obligation, covenant or agreement of this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof,
shall be had against any incorporator, stockholder, officer or director, past, present or future as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood
that this Indenture and the obligations issued hereunder are solely corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers or directors as such, of the Company or of any
predecessor or successor corporation, or any of them, because of the creation of the indebtedness hereby authorized, or under or by reason
of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom; and that any
and all such personal liability of every name and nature, either at common law or in equity or by constitution or statute, of, and any
and all such rights and claims against, every such incorporator, stockholder, officer or director as such, because of the creation of
the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in
any of the Securities or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of such Securities.
ARTICLE
XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01 Effect on Successors
and Assigns.
All the covenants, stipulations,
promises and agreements in this Indenture contained by or on behalf of the Company shall bind its successors and assigns, whether so expressed
or not.
SECTION 13.02 Actions by Successor.
Any act or proceeding by any
provision of this Indenture authorized or required to be done or performed by any board, committee or officer of the Company shall and
may be done and performed with like force and effect by the corresponding board, committee or officer of any corporation that shall at
the time be the lawful successor of the Company.
SECTION 13.03 Surrender of Company
Powers.
The Company by instrument
in writing executed by authority of its Board of Directors and delivered to the Trustee may surrender any of the powers reserved to the
Company, and thereupon such power so surrendered shall terminate both as to the Company and as to any successor corporation.
SECTION 13.04 Notices.
Except as otherwise expressly
provided herein any notice or demand that by any provision of this Indenture is required or permitted to be given or served by the Trustee
or by the holders of Securities to or on the Company may be given or served by being deposited first class postage prepaid in a post-office
letterbox addressed (until another address is filed in writing by the Company with the Trustee), as follows: ProKidney Corp., Attn: James
Coulston, CFO, 2000 Frontis Plaza Blvd., Suite 250, Winston-Salem, North Carolina 27103. Any notice, election, request or demand by the
Company or any Securityholder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given
or made in writing at the Corporate Trust Office of the Trustee. Any notice or communication to a holder shall be mailed by first-class
mail to his address shown on the Security Register kept by the Security Registrar.
Failure to mail a notice or
communication to a holder or any defect in such notice or communication shall not affect its sufficiency with respect to other holders.
If a notice or communication is mailed or sent in the manner provided above within the time prescribed, it is duly given as of the date
it is mailed, whether or not the addressee receives it, except that notice to the Trustee or the Company shall only be effective upon
receipt thereof by the Trustee or the Company, respectively. If the Company mails a notice or communication to holders of Securities,
it shall mail a copy to the Trustee at the same time.
SECTION 13.05 Governing Law.
This Indenture and each Security
shall be deemed to be a contract made under the internal laws of the State of New York, and for all purposes shall be construed in accordance
with the laws of said State.
SECTION 13.06 Treatment of Securities
as Debt.
It is intended that the Securities
will be treated as indebtedness and not as equity for federal income tax purposes. The provisions of this Indenture shall be interpreted
to further this intention.
SECTION 13.07 Compliance Certificates
and Opinions.
| (a) | Upon any application or demand by the Company to the Trustee to take any
action under any of the provisions of this Indenture, the Company, shall furnish to the Trustee an Officers’ Certificate stating
that all conditions precedent provided for in this Indenture relating to the proposed action have been complied with and an Opinion of
Counsel stating |
that in the opinion
of such counsel all such conditions precedent have been complied with, except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application
or demand, no additional certificate or opinion need be furnished.
| (b) | Each certificate or opinion provided for in this Indenture and delivered
to the Trustee with respect to compliance with a condition or covenant in this Indenture shall include (1) a statement that the Person
making such certificate or opinion has read such covenant or condition; (2) 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; (3) a statement that, in the
opinion of such Person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied with; and (4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with. |
SECTION 13.08 Payments on Business
Days.
Except as provided pursuant
to Section 2.01 pursuant to a Board Resolution, and as set forth in an Officers’ Certificate, or established in one or more indentures
supplemental to this Indenture, in any case where the date of maturity of interest or principal of any Security or the date of redemption
of any Security shall not be a Business Day, then payment of interest or principal (and premium, if any) may be made on the next succeeding
Business Day with the same force and effect as if made on the nominal date of maturity or redemption, and no interest shall accrue for
the period after such nominal date.
SECTION 13.09 Conflict with
Trust Indenture Act.
If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
SECTION 13.10 Counterparts.
This Indenture may be executed
in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same
instrument.
SECTION 13.11 Separability.
In case any one or more of
the provisions contained in this Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of such Securities,
but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained
herein or therein.
SECTION 13.12 Assignment.
The Company will have the
right at all times to assign any of its rights or obligations under this Indenture to a direct or indirect wholly-owned Subsidiary of
the Company, provided that, in the event of any such assignment, the Company, will remain liable for all such obligations. Subject to
the foregoing, this Indenture is binding upon and inures to the benefit of the parties thereto and their respective successors and assigns.
This Indenture may not otherwise be assigned by the parties thereto.
IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly executed all as of the day and year first above written.
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As Trustee |
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Exhibit 4.2
PROKIDNEY CORP.
Issuer
AND
[ ] Trustee
INDENTURE
Dated as of [ ]
Subordinated Debt Securities
TABLE OF CONTENTS1
Page
1 This Table of Contents does not
constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions.
INDENTURE, dated as of [ ],
by and between ProKidney Corp., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the “Company”),
and [ ], as trustee (the “Trustee”):
WHEREAS, for its lawful corporate
purposes, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of subordinated debt
securities (hereinafter referred to as the “Securities”), in an unlimited aggregate principal amount to be issued from time
to time in one or more series as in this Indenture provided, as registered Securities without coupons, to be authenticated by the certificate
of the Trustee;
WHEREAS, to provide the terms
and conditions upon which the Securities are to be authenticated, issued and delivered, the Company has duly authorized the execution
of this Indenture; and
WHEREAS, all things necessary
to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration
of the premises and the purchase of the Securities by the holders thereof, it is mutually covenanted and agreed as follows for the equal
and ratable benefit of the holders of Securities:
ARTICLE
I
DEFINITIONS
SECTION 1.01 Definitions
of Terms.
The terms defined in this
Section (except as in this Indenture otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture
and of any indenture supplemental hereto shall have the respective meanings specified in this Section and shall include the plural as
well as the singular. All other terms used in this Indenture that are defined in the Trust Indenture Act of 1939, as amended, or that
are by reference in such Act defined in the Securities Act of 1933, as amended (except as herein otherwise expressly provided or unless
the context otherwise requires), shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act
as in force at the date of the execution of this instrument.
“Authenticating Agent”
means an authenticating agent with respect to all or any of the series of Securities appointed with respect to all or any series of the
Securities by the Trustee pursuant to Section 2.10.
“Bankruptcy Law”
means Title 11, U.S. Code, Part V of the Companies Act (as amended) of the Cayman Islands, the Companies Winding-Up Rules (as amended)
of the Cayman Islands, the Insolvency Practitioner’s Regulations (as amended) of the Cayman Islands and the Foreign Bankruptcy Proceedings
(International Cooperation) Rules (as amended) of the Cayman Islands, each amended from time to time or any similar Cayman Islands, U.S.
federal or state law for the relief of debtors.
“Board of Directors”
means the Board of Directors of the Company or any duly authorized committee of such Board.
“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such certification.
“Business Day”
means, with respect to any series of Securities, any day other than a day on which Federal or State banking institutions in the Borough
of Manhattan, the City and State of New York, are authorized or obligated by law, executive order or regulation to close.
“Cayman AML Regulations”:
The Anti-Money Laundering Regulations (as amended) of the Cayman Islands and The Guidance Notes on the Prevention and Detection of Money
Laundering, Terrorist Financing and Proliferation Financing in the Cayman Islands, each as amended and revised from time to time.
“Cayman FATCA Legislation”:
The Cayman Islands Tax Information Authority Act (as amended) and the OECD Standard for Automatic Exchange of Financial Account Information
– Common Reporting Standard (in each case, including any implementing legislation, rules, regulations and guidance notes with respect
to such laws).
“Certificate”
means a certificate signed by the chief executive officer, the chief financial officer or the principal accounting officer of the Company.
The Certificate need not comply with the provisions of Section 13.07.
“Commission” means
the Securities and Exchange Commission.
“Company” means
the corporation named as the “Company” in the first paragraph of this instrument until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor corporation.
“Corporate Trust Office”
means the office of the Trustee at which, at any particular time, its corporate trust business shall be principally administered, which
office at the date hereof is located at [ ], except that whenever a provision herein refers to an office or agency of the Trustee in the
Borough of Manhattan, the City and State of New York, such office is located, at the date hereof, at [ ].
“Custodian” means
any receiver, trustee, assignee, liquidator, or similar official under any Bankruptcy Law.
“Default” means
an event which is, or after notice or lapse of time, or both, would constitute an Event of Default.
“Depositary” means,
with respect to Securities of any series, for which the Company shall determine that such Securities will be issued as a Global Security,
The Depository Trust Company, New York, New York, another clearing agency, or any successor registered as a clearing agency under the
Exchange Act, or other applicable statute or regulation, which, in each case, shall be designated by the Company pursuant to either Section
2.01 or Section 2.11.
“Event of Default”
means, with respect to Securities of a particular series, any event specified in Section 6.01, continued for the period of time, if any,
therein designated.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“FATCA”: Sections 1471
through 1474 of the Code, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to
Section 1471(b) of the Code, any intergovernmental agreement entered into in connection with such sections of the Code, or any U.S.
or non-U.S. fiscal or regulatory legislation, rules, guidance notes or practices adopted pursuant to any such intergovernmental agreement.
“Global Security”
means, with respect to any series of Securities, a Security executed by the Company and delivered by the Trustee to the Depositary or
pursuant to the Depositary’s instruction, all in accordance with this Indenture, which shall be registered in the name of the Depositary
or its nominee.
“Governmental Obligations”
means securities that are (i) direct obligations of the United States of America for the payment of which its full faith and credit is
pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America that,
in either case, are non-callable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with respect to any such Governmental Obligation or
a specific payment of principal of or interest on any such Governmental Obligation held by such custodian for the account of the holder
of such depositary receipt; provided, however, that (except as required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the Governmental
Obligation or the specific payment of principal of or interest on the Governmental Obligation evidenced by such depositary receipt.
“herein,” “hereof”
and “hereunder,” and other words of similar import, refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
“Indenture” means
this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental
hereto entered into in accordance with the terms hereof.
“Interest Payment Date,”
when used with respect to any installment of interest on a Security of a particular series, means the date specified in such Security
or in a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date on which an installment
of interest with respect to Securities of that series is due and payable.
“Officers’ Certificate”
means a certificate signed by a director or the President or a Senior Vice President and by the Chief Financial Officer, Vice President
of Finance, the Treasurer or an Assistant Treasurer or the Controller or an Assistant Controller or the Secretary or an Assistant Secretary
of the Company that is delivered to the Trustee in accordance with the terms hereof. Certificate shall include the statements provided
for in Section 13.07, if and to the extent required by the provisions thereof.
“Opinion of Counsel”
means a written opinion of counsel, who may be counsel to the Company (and may include directors or employees of the Company) and which
opinion is acceptable to the Trustee which acceptance shall not be unreasonably withheld.
“Outstanding”,
when used with reference to Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time, all
Securities of that series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore
canceled by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that have previously
been canceled; (b) Securities or portions thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary
amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside
and segregated in trust by the Company (if the Company shall act as its own paying agent); provided, however, that if such Securities
or portions of such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as in
Article III provided, or provision satisfactory to the Trustee shall have been made for giving such notice; and (c) Securities in lieu
of or in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.07.
“Person” means
any individual, corporation, limited liability company, partnership, joint-venture, association, joint-stock company, trust, estate, unincorporated
organization or government or any agency or political subdivision thereof.
“Predecessor Security”
of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.07 in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“Responsible Officer,”
when used with respect to the Trustee, means any officer of the Trustee, including any vice president, assistant vice president, secretary,
assistant secretary, the treasurer, any assistant treasurer, the managing director or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular
subject.
“Securities” means
the debt Securities authenticated and delivered under this Indenture.
“Security Register”
has the meaning specified in Section 2.05.
“Security Registrar”
has the meaning specified in Section 2.05.
“Securityholder,”
“holder of Securities,” “registered holder,” or other similar term, means the Person or Persons in whose name
or names a particular Security shall be registered in the Security Register.
“Subsidiary” means,
with respect to any Person, (i) any corporation at least a majority of whose outstanding Voting Stock shall at the time be owned, directly
or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, (ii) any general
partnership, joint venture or similar entity, at least a majority of whose outstanding partnership or similar interests shall at the time
be owned by such Person, or by one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries and (iii) any limited
partnership of which such Person or any of its Subsidiaries is a general partner.
“Trustee” means
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 such successor Trustee. The term
“Trustee” as used with respect to a particular series of the Securities shall mean the trustee with respect to that series.
“Trust Indenture Act”
means the Trust Indenture Act of 1939, as amended, subject to the provisions of Sections 9.01, 9.02, and 10.01, as in effect at the date
of execution of this instrument; provided, however, that in the event the Trust Indenture Act is amended after such date, Trust Indenture
Act means, to the extent required by such amendment, the Trust Indenture Act of 1939, as so amended, or any successor statute.
“Voting Stock,”
as applied to any Person, means shares, interests, participations or other equivalents in the equity interest (however designated) in
such Person having ordinary voting power for the election of a majority of the directors (or the equivalent) of such Person, other than
shares, interests, participations or other equivalents having such power only by reason of the occurrence of a contingency.
ARTICLE
II
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01 Designation
and Terms of Securities.
| (a) | The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture
is unlimited. The Securities may be issued in one or more series up to the aggregate principal amount of Securities of that series from
time to time authorized by or pursuant to a Board Resolution of the Company or pursuant to one or more indentures supplemental hereto.
Prior to the initial issuance of Securities of a given series, there shall be established in or pursuant to a Board Resolution of the
Company, and set forth in an Officers’ Certificate of the Company, or established in one or more indentures supplemental hereto: |
| (1) | the title of the Security of the series (which shall distinguish the Securities of the series from all
other Securities); |
| (2) | the aggregate principal amount of the Securities of such series initially to be issued and any limit upon
the aggregate principal amount of the Securities of that series that may be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of that series); |
| (3) | the currency or units based on or relating to currencies in which debt securities of such series are denominated
and the currency or units in which principal or interest or both will or may be payable; |
| (4) | the date or dates on which the principal of the Securities of the series is payable and the place(s) of
payment; |
| (5) | the rate or rates at which the Securities of the series shall bear interest or the manner of calculation
of such rate or rates, if any; |
| (6) | he date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest
will be payable or the manner of determination of such Interest Payment Dates, the place(s) of payment, and the record date for the determination
of holders to whom interest is payable on any such Interest Payment Dates or the method for determining such dates; |
| (7) | the right, if any, to extend the interest payment periods or to defer the payment of interest and the
duration of such extension; |
| (8) | the period or periods within which, the price or prices at which and the terms and conditions upon which,
Securities of the series may be redeemed, in whole or in part, at the option of the Company; |
| (9) | the obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any
sinking fund or analogous provisions (including payments made in cash in satisfaction of future sinking fund obligations) or at the option
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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;
| (10) | whether or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
| (11) | the form of the Securities of the series including the form of the Certificate of Authentication for such
series; |
| (12) | if other than denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, the
denominations in which the Securities of the series shall be issuable; |
| (13) | any and all other terms with respect to such series (which terms shall not be inconsistent with the terms
of this Indenture, as amended by any supplemental indenture) including any terms which may be required by or advisable under United States
laws or regulations or advisable in connection with the marketing of Securities of that series; |
| (14) | whether the Securities are issuable as a Global Security and, in such case, the identity of the Depositary
for such series; |
| (15) | whether the Securities will be convertible into shares of common stock or other securities of the Company
and, if so, the terms and conditions upon which such Securities will be so convertible, including the conversion price and the conversion
period; |
| (16) | if other than the principal amount thereof, the portion of the principal amount of Securities of the series
which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01; |
| (17) | any additional or different Events of Default or restrictive covenants provided for with respect to the
Securities of the series; and |
| (18) | the subordination terms of the Securities of the series. |
All Securities of any one
series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to any such Board
Resolution or in any indentures supplemental hereto.
If any of the terms of the
series are established by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of such action shall
be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the
Officers’ Certificate of the Company setting forth the terms of the series.
Securities of any particular
series may be issued at various times, with different dates on which the principal or any installment of principal is payable, with different
rates of interest, if any, or different methods by which rates of interest may be determined, with different dates on which such interest
may be payable and with different redemption dates.
SECTION 2.02 Form
of Securities and Trustee’s Certificate.
The Securities of any series
and the Trustee’s certificate of authentication to be borne by such Securities shall be substantially of the tenor and purport as
set forth in one or more indentures supplemental hereto or as provided in a Board Resolution of the Company and as set forth in an Officers’
Certificate of the Company and may have such letters, numbers or other marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation
of any stock exchange on which Securities of that series may be listed, or to conform to usage.
SECTION 2.03 Denominations:
Provisions for Payment.
The Securities shall be issuable
as registered Securities and in the denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, subject to Section
2.01(a)(12). The Securities of a particular series shall bear interest payable on the dates and at the rate specified with respect to
that series. The principal of and the interest on the Securities of any series, as well as any premium thereon in case of redemption thereof
prior to maturity, shall be payable in the coin or currency of the United States of America that at the time is legal tender for public
and private debt, at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, the City and State of
New York. Each Security shall be dated the date of its authentication. Interest on the Securities shall be computed on the basis of a
360-day year composed of twelve 30-day months.
The interest installment on
any Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities of that series
shall be paid to the Person in whose name said Security (or one or more Predecessor Securities) is registered at the close of business
on the regular record date for such interest installment. In the event that any Security of a particular series or portion thereof is
called for redemption and the redemption date is subsequent to a regular record date with respect to any Interest Payment Date and prior
to such Interest Payment Date, interest on such Security will be paid upon presentation and surrender of such Security as provided in
Section 3.03.
Any interest on any Security
that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date for Securities of the same series (herein
called “Defaulted Interest”) shall forthwith cease to be payable to the registered holder on the relevant regular record date
by virtue of having been such holder; and such Defaulted Interest shall be paid by the Company, at its election, as provided in clause
(1) or clause (2) below:
| (1) | The Company may make payment of any Defaulted Interest on Securities to the Persons in whose names such
Securities (or their respective Predecessor Securities) are registered at the close of business on a special record date for the payment
of such Defaulted Interest, which shall be fixed in the following manner: the Company shall notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on each such Security and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted Interest which shall not be more than 15 nor less than 10 days prior
to the date of the proposed payment and not less than 10 days |
after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the Company of such special record date and, in the name and at
the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the special record date therefor
to be mailed, first class postage prepaid, to each Securityholder at his or her address as it appears in the Security Register, not less
than 10 days prior to such special record date. Notice of the proposed payment of such Defaulted Interest and the special record date
therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered on such special record date.
| (2) | The Company may make payment of any Defaulted Interest on any Securities in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee. |
Unless otherwise set forth
in a Board Resolution of the Company or one or more indentures supplemental hereto establishing the terms of any series of Securities
pursuant to Section 2.01 hereof, the term “regular record date” as used in this Section with respect to a series of Securities
with respect to any Interest Payment Date for such series shall mean either the fifteenth day of the month immediately preceding the month
in which an Interest Payment Date established for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date
is the first day of a month, or the last day of the month immediately preceding the month in which an Interest Payment Date established
for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is the fifteenth day of a month, whether or
not such date is a Business Day.
Subject to the foregoing provisions
of this Section, each Security of a series delivered under this Indenture upon transfer of or in exchange for or in lieu of any other
Security of such series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security.
SECTION 2.04 Execution
and Authentications.
The Securities shall be signed
on behalf of the Company by its President, or one of its Senior Vice Presidents, or its Treasurer, or one of its Assistant Treasurers,
or its Secretary, or one of its Assistant Secretaries, under its corporate seal attested by its Secretary or one of its Assistant Secretaries.
Signatures may be in the form of a manual or facsimile signature. The Company may use the facsimile signature of any Person who shall
have been a President or Vice President thereof, or of any Person who shall have been a Treasurer or Assistant Treasurer thereof, or of
any Person who shall have been a Secretary or Assistant Secretary thereof, notwithstanding the fact that at the time the Securities shall
be authenticated and delivered or disposed of such Person shall have ceased to be the President or a Vice President, the Treasurer or
an Assistant Treasurer or the Secretary or an Assistant Secretary, of the Company. The seal of the Company may be in the form of a facsimile
of such seal and may be impressed, affixed, imprinted or otherwise reproduced on the Securities. The Securities may contain such notations,
legends or endorsements required by law, stock exchange rule or usage. Each Security shall be dated the date of its authentication.
A Security shall not be valid
or obligatory for any purpose and shall not be entitled to any benefit under this Indenture, in each case, until authenticated with a
certificate of authentication manually signed by an authorized signatory of the Trustee, or by an Authenticating Agent. Such certificate
shall be
conclusive evidence, and the only evidence, that
the Security so authenticated has been duly authenticated and delivered hereunder and that the Security is entitled to the benefits of
this Indenture. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities
of any series executed by the Company to the Trustee for authentication, together with a written order of the Company for the authentication
and delivery of such Securities, signed by its President or any Vice President and its Secretary or any Assistant Secretary, and the Trustee
in accordance with such written order shall authenticate and deliver such Securities.
In authenticating such Securities
and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive,
and (subject to Section 7.01) shall be fully protected in relying upon, an Opinion of Counsel stating that the form and terms thereof
have been established in conformity with the provisions of this Indenture.
The Trustee shall not be required
to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights,
duties or immunities under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee.
SECTION 2.05 Registration
of Transfer and Exchange.
| (a) | Securities of any series may be exchanged upon presentation thereof at the office or agency of the Company
designated for such purpose in the Borough of Manhattan, the City and State of New York, for other Securities of such series of authorized
denominations, and for a like aggregate principal amount, upon payment of a sum sufficient to cover any tax or other governmental charge
in relation thereto, all as provided in this Section. In respect of any Securities so surrendered for exchange, the Company shall execute,
the Trustee shall authenticate and such office or agency shall deliver in exchange therefor the Security or Securities of the same series
that the Securityholder making the exchange shall be entitled to receive, bearing numbers not contemporaneously outstanding. |
| (b) | The Company shall keep, or cause to be kept, at its office or agency designated for such purpose in the
Borough of Manhattan, the City and State of New York, or such other location designated by the Company a register or registers (herein
referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company
shall register the Securities and the transfers of Securities as in this Article provided and which at all reasonable times shall be open
for inspection by the Trustee. The registrar for the purpose of registering Securities and transfer of Securities as herein provided shall
be appointed as authorized by Board Resolution (the “Security Registrar”). |
Upon surrender for transfer of any Security
at the office or agency of the Company designated for such purpose, the Company shall execute, the Trustee shall authenticate and such
office or agency shall deliver in the name of the transferee or transferees a new Security or Securities of the same series as the Security
presented for a like aggregate principal amount.
All Securities presented or surrendered
for exchange or registration of transfer, as provided in this Section, shall be accompanied (if so required by the Company or the Security
Registrar) by a written instrument or instruments of transfer, in form satisfactory to the Company or the Security Registrar, duly executed
by the registered holder or by such holder’s duly authorized attorney in writing.
| (c) | No service charge shall be made for any exchange or registration of transfer of Securities, or issue of
new Securities in case of partial redemption of any series, but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge in relation thereto, other than exchanges pursuant to Section 2.06, Section 3.03(b) and Section 9.04 not
involving any transfer. |
| (d) | The Company shall not be required (i) to issue, exchange or register the transfer of any Securities during
a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of less than all the Outstanding
Securities of the same series and ending at the close of business on the day of such mailing, nor (ii) to register the transfer of or
exchange any Securities of any series or portions thereof called for redemption. The provisions of this Section 2.05 are, with respect
to any Global Security, subject to Section 2.11 hereof. |
| (e) | Each Securityholder and beneficial owner of any Securities (each a "Holder"), will be deemed
to make the following representations and covenants by its acceptance of any Securities: |
| (1) | it is not a member of the public in the Cayman Islands; |
| (2) | it will provide the Company or its agents with such information and documentation as may be required for
the Company to achieve compliance with Cayman AML Regulations and to promptly update or replace such information or documentation as necessary; |
| (3) | it acknowledges receipt of the Company’s
privacy notice (which can be accessed at https://prokidney.com/privacy-notice/
and provides information on the Company’s use of personal data in accordance
with the Cayman Islands Data Protection Act (as amended) and, in respect of any EU data subjects,
the EU General Data Protection Regulation) and, if applicable, agrees to promptly provide
the privacy notice (or any updated version thereof as may be provided from time to time)
to each individual (such as any individual directors, shareholders, beneficial owners, authorized
signatories, trustees or others) whose personal data such beneficial owner provides to the
Company or any of its affiliates or delegates; and |
| (4) | it will provide the Company or its agents with any correct, complete and accurate information and documentation
that may be required for the Company to comply with FATCA and the Cayman FATCA Legislation and to prevent the imposition of U.S. federal
withholding tax under FATCA and fines and penalties on the Company or any affiliate (or any of their directors) under the Cayman FATCA
Legislation on payments to or for the benefit of the Company or any affiliate. In the event that it fails to provide such information
or documentation for the purposes of FATCA, or to the extent that its ownership of Securities would otherwise cause the Company or any
affiliate to be subject to any tax under FATCA, (i) the Company (and any agent acting on its behalf) is authorized to withhold amounts
otherwise distributable to such Holder as compensation for any tax imposed under FATCA as a result of such failure or such Holder’s
ownership, and (ii) to the extent necessary to avoid an adverse effect on the Company as a result of such failure or such Holder’s
ownership, the Company will have the right to compel such Holder to sell any of its Securities and, if such Holder does not sell such
Securities within |
10 Business Days after notice from the
Company or its agents, the Company will have the right to sell such Securities at a public or private sale called and conducted in any
manner permitted by law, and to remit the net proceeds of such sale (taking into account any taxes incurred by the company in connection
with such sale) to such Holder as payment in full for such Securities. The Company may also assign such Securities a separate securities
identifier in the Company’s sole discretion. Each Holder agrees that the Company, the Trustee or their agents or representatives
may (1) provide any information and documentation concerning its investment in its Securities to the Cayman Islands Tax Information Authority,
the IRS and any other relevant tax authority, and (2) take such other steps as they deem necessary or helpful to enable the Company and
any of its affiliates to comply with FATCA and the Cayman FATCA Legislation.
SECTION 2.06 Temporary
Securities.
Pending the preparation of
definitive Securities of any series, the Company may execute, and the Trustee shall authenticate and deliver, temporary Securities (printed,
lithographed or typewritten) of any authorized denomination. Such temporary Securities shall be substantially in the form of the definitive
Securities in lieu of which they are issued, but with such omissions, insertions and variations as may be appropriate for temporary Securities,
all as may be determined by the Company. Every temporary Security of any series shall be executed by the Company and be authenticated
by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities of such
series. Without unnecessary delay the Company will execute and will furnish definitive Securities of such series and thereupon any or
all temporary Securities of such series may be surrendered in exchange therefor (without charge to the holders), at the office or agency
of the Company designated for the purpose in the Borough of Manhattan, the City and State of New York, and the Trustee shall authenticate
and such office or agency shall deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities
of such series, unless the Company advises the Trustee to the effect that definitive Securities need not be executed and furnished until
further notice from the Company. Until so exchanged, the temporary Securities of such series shall be entitled to the same benefits under
this Indenture as definitive Securities of such series authenticated and delivered hereunder.
SECTION 2.07 Mutilated,
Destroyed, Lost or Stolen Securities.
In case any temporary or definitive
Security shall become mutilated or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence) shall execute,
and upon the Company’s request the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the same series,
bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security, or in lieu of and in substitution
for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security shall furnish to the Company and
the Trustee such security or indemnity as may be required by them to save each of them harmless, and, in every case of destruction, loss
or theft, the applicant shall also furnish to the Company and the Trustee evidence to their satisfaction of the destruction, loss or theft
of the applicant’s Security and of the ownership thereof. The Trustee may authenticate any such substituted Security and deliver
the same upon the written request or authorization of any officer of the Company. Upon the issuance of any substituted Security, the Company
may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee) connected therewith. In case any Security that has matured or is about
to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Security, pay or authorize
the payment of the same (without surrender thereof except in the case of a mutilated Security) if the applicant for such payment shall
furnish to the
Company and the Trustee such security or indemnity
as they may require to save them harmless, and, in case of destruction, loss or theft, evidence to the satisfaction of the Company and
the Trustee of the destruction, loss or theft of such Security and of the ownership thereof.
Every replacement Security
issued pursuant to the provisions of this Section shall constitute an additional contractual obligation of the Company whether or not
the mutilated, destroyed, lost or stolen Security shall be found at any time, or be enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all other Securities of the same series duly issued hereunder.
All Securities shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities, and shall preclude (to the extent lawful) any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.08 Cancellation.
All Securities surrendered
for the purpose of payment, redemption, exchange or registration of transfer shall, if surrendered to the Company or any paying agent,
be delivered to the Trustee for cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and no Securities shall be
issued in lieu thereof except as expressly required or permitted by any of the provisions of this Indenture. On request of the Company
at the time of such surrender, the Trustee shall deliver to the Company canceled Securities held by the Trustee. In the absence of such
request the Trustee may dispose of canceled Securities in accordance with its standard procedures and deliver a certificate of disposition
to the Company. If the Company shall otherwise acquire any of the Securities, however, such acquisition shall not operate as a redemption
or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered to the Trustee for cancellation.
SECTION 2.09 Benefits
of Indenture.
Nothing in this Indenture
or in the Securities, express or implied, shall give or be construed to give to any Person, other than the parties hereto and the holders
of the Securities (and, with respect to the provisions of Article XIV, the holders of Senior Indebtedness, as defined in any supplement
to this Indenture pursuant to Article XIV) any legal or equitable right, remedy or claim under or in respect of this Indenture, or under
any covenant, condition or provision herein contained; all such covenants, conditions and provisions being for the sole benefit of the
parties hereto and of the holders of the Securities (and, with respect to the provisions of Article XIV, the holders of Senior Indebtedness).
SECTION 2.10 Authenticating
Agent.
So long as any of the Securities
of any series remain Outstanding there may be an Authenticating Agent for any or all such series of Securities which the Trustee shall
have the right to appoint. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate Securities of
such series issued upon exchange, transfer or partial redemption thereof, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. All references in this
Indenture to the authentication of Securities by the Trustee shall be deemed to include authentication by an Authenticating Agent for
such series. Each Authenticating Agent shall be acceptable to the Company and shall be a corporation that has a combined capital and surplus,
as most recently reported or determined by it, sufficient under the laws of any jurisdiction under which it is organized or in which it
is doing business to conduct a trust business, and that is otherwise authorized under such laws to conduct such business and is subject
to supervision or examination by Federal
or State authorities. If at any time any Authenticating
Agent shall cease to be eligible in accordance with these provisions, it shall resign immediately.
Any Authenticating Agent may
at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time (and upon request
by the Company shall) terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating
Agent and to the Company. Upon resignation, termination or cessation of eligibility of any Authenticating Agent, the Trustee may appoint
an eligible successor Authenticating Agent acceptable to the Company. Any successor Authenticating Agent, upon acceptance of its appointment
hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder as if originally named as an Authenticating
Agent pursuant hereto.
SECTION 2.11 Global
Securities
| (a) | If the Company shall establish pursuant to Section 2.01 that some or all of the Securities of a particular
series are to be issued as a Global Security, then the Company shall execute and the Trustee shall, in accordance with Section 2.04, authenticate
and deliver, a Global Security that (i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount
of, the Outstanding Securities of such series which are to be issued as a Global Security, (ii) shall be registered in the name of the
Depositary or its nominee, (iii) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction
and (iv) shall bear a legend substantially to the following effect: “Except as otherwise provided in Section 2.11 of the Indenture,
this Security may be transferred, in whole but not in part, only to another nominee of the Depositary or to a successor Depositary or
to a nominee of such successor Depositary.” |
| (b) | Notwithstanding the provisions of Section 2.05, the Global Security of a series may be transferred, in
whole but not in part and in the manner provided in Section 2.05, only to another nominee of the Depositary for such series, or to a successor
Depositary for such series selected or approved by the Company or to a nominee of such successor Depositary. |
| (c) | If at any time the Depositary for a series of the Securities notifies the Company that it is unwilling
or unable to continue as Depositary for such series or if at any time the Depositary for such series shall no longer be registered or
in good standing under the Exchange Act, or other applicable statute or regulation, and a successor Depositary for such series is not
appointed by the Company within 90 days after the Company receives such notice or becomes aware of such condition, as the case may be,
this Section 2.11 shall no longer be applicable to the Securities of such series and the Company will execute, and subject to Section
2.05, the Trustee will authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal amount of the Global Security of such series in exchange for
such Global Security. In addition, the Company may at any time determine that the Securities of any series shall no longer be represented
by a Global Security and that the provisions of this Section 2.11 shall no longer apply to the Securities of such series. In such event
the Company will execute and subject to Section 2.05, the Trustee, upon receipt of an Officers’ Certificate evidencing such determination
by the Company, will authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal amount of the Global Security of such series in exchange for
such Global Security. Upon the exchange of the Global Security for such Securities in definitive registered form without coupons, in authorized
denominations, the Global Security shall |
be canceled by the Trustee. Such Securities
in definitive registered form issued in exchange for the Global Security pursuant to this Section 2.11(c) shall be registered in such
names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Securities to the Depositary for delivery to the Persons in whose names such
Securities are so registered.
ARTICLE
III
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01 Redemption.
The Company may redeem the
Securities of any series issued hereunder on and after the dates and in accordance with the terms established for such series pursuant
to Section 2.01 hereof.
SECTION 3.02 Notice
of Redemption.
| (a) | In case the Company shall desire to exercise such right to redeem all or, as the case may be, a portion
of the Securities of any series in accordance with the right reserved so to do, the Company shall, or shall cause the Trustee to, give
notice of such redemption to holders of the Securities of such series to be redeemed by mailing, first class postage prepaid, a notice
of such redemption not less than 30 days and not more than 90 days before the date fixed for redemption of that series to such holders
at their last addresses as they shall appear upon the Security Register unless a shorter period is specified in the Securities to be redeemed.
Any notice that is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the registered
holder receives the notice. In any case, failure duly to give such notice to the holder of any Security of any series designated for redemption
in whole or in part, or any defect in the notice, shall not affect the validity of the proceedings for the redemption of any other Securities
of such series or any other series. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers’
Certificate evidencing compliance with any such restriction. |
Each such notice of redemption
shall specify the date fixed for redemption and the redemption price at which Securities of that series are to be redeemed, and shall
state that payment of the redemption price of such Securities to be redeemed will be made at the office or agency of the Company in the
Borough of Manhattan, the City and State of New York, upon presentation and surrender of such Securities, that interest accrued to the
date fixed for redemption will be paid as specified in said notice, that from and after said date interest will cease to accrue and that
the redemption is for a sinking fund, if such is the case. If less than all the Securities of a series are to be redeemed, the notice
to the holders of Securities of that series to be redeemed in whole or in part shall specify the particular Securities to be so redeemed.
In case any Security is to be redeemed in part only, the notice that relates to such Security shall state the portion of the principal
amount thereof to be redeemed, and shall state that on and after the redemption date, upon surrender of such Security, a new Security
or Securities of such series in principal amount equal to the unredeemed portion thereof will be issued.
| (b) | If less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at
least 30 days’ notice in advance of the date fixed for redemption as to the aggregate principal amount of Securities of the series
to be redeemed, and thereupon the |
Trustee shall select, by lot or in such
other manner as it shall deem appropriate and fair in its discretion and that may provide for the selection of a portion or portions (equal
to one thousand U.S. dollars ($1,000) or any integral multiple thereof) of the principal amount of such Securities of a denomination larger
than $1,000, the Securities to be redeemed and shall thereafter promptly notify the Company in writing of the numbers of the Securities
to be redeemed, in whole or in part. The Company may, if and whenever it shall so elect, by delivery of instructions signed on its behalf
by its President or any Vice President, instruct the Trustee or any paying agent to call all or any part of the Securities of a particular
series for redemption and to give notice of redemption in the manner set forth in this Section, such notice to be in the name of the Company
or its own name as the Trustee or such paying agent may deem advisable. In any case in which notice of redemption is to be given by the
Trustee or any such paying agent, the Company shall deliver or cause to be delivered to, or permit to remain with, the Trustee or such
paying agent, as the case may be, such Security Register, transfer books or other records, or suitable copies or extracts therefrom, sufficient
to enable the Trustee or such paying agent to give any notice by mail that may be required under the provisions of this Section.
SECTION 3.03 Payment
Upon Redemption.
| (a) | If the giving of notice of redemption shall have been completed as above provided, the Securities or portions
of Securities of the series to be redeemed specified in such notice shall become due and payable on the date and at the place stated in
such notice at the applicable redemption price, together with interest accrued to the date fixed for redemption and interest on such Securities
or portions of Securities shall cease to accrue on and after the date fixed for redemption, unless the Company shall default in the payment
of such redemption price and accrued interest with respect to any such Security or portion thereof. On presentation and surrender of such
Securities on or after the date fixed for redemption at the place of payment specified in the notice, said Securities shall be paid and
redeemed at the applicable redemption price for such series, together with interest accrued thereon to the date fixed for redemption (but
if the date fixed for redemption is an interest payment date, the interest installment payable on such date shall be payable to the registered
holder at the close of business on the applicable record date pursuant to Section 2.03). |
| (b) | Upon presentation of any Security of such series that is to be redeemed in part only, the Company shall
execute and the Trustee shall authenticate and the office or agency where the Security is presented shall deliver to the holder thereof,
at the expense of the Company, a new Security of the same series of authorized denominations in principal amount equal to the unredeemed
portion of the Security so presented. |
SECTION 3.04 Sinking
Fund.
The provisions of Sections
3.04, 3.05 and 3.06 shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise specified
as contemplated by Section 2.01 for Securities of such series.
The minimum amount of any
sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,”
and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional
sinking fund payment.” If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 3.05. Each sinking fund payment
shall be applied to the redemption of Securities
of any series as provided for by the terms of Securities of such series.
SECTION 3.05 Satisfaction
of Sinking Fund Payments with Securities.
The Company (i) may deliver
Outstanding Securities of a series (other than any Securities previously called for redemption) and (ii) may apply as a credit Securities
of a series that have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part
of any sinking fund payment with respect to the Securities of such series required to be made pursuant to the terms of such Securities
as provided for by the terms of such series, provided that such Securities have not been previously so credited. Such Securities shall
be received and credited for such purpose by the Trustee at the redemption price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 3.06 Redemption
of Securities for Sinking Fund.
Not less than 45 days prior
to each sinking fund payment date for any series of Securities, the Company will deliver to the Trustee an Officers’ Certificate
specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of the series, the portion thereof,
if any, that is to be satisfied by delivering and crediting Securities of that series pursuant to Section 3.05 and the basis for
such credit and will, together with such Officers’ Certificate, deliver to the Trustee any Securities to be so delivered. Not less
than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 3.02 and cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 3.02. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Section 3.03.
ARTICLE
IV
COVENANTS
SECTION 4.01 Payment
of Principal, Premium and Interest.
The Company will duly and
punctually pay or cause to be paid the principal of (and premium, if any) and interest on the Securities of that series at the time and
place and in the manner provided herein and established with respect to such Securities.
SECTION 4.02 Maintenance
of Office or Agency.
So long as any series of the
Securities remain Outstanding, the Company agrees to maintain an office or agency in the Borough of Manhattan, the City and State of New
York, with respect to each such series and at such other location or locations as may be designated as provided in this Section 4.02,
where (i) Securities of that series may be presented or surrendered for payment, (ii) Securities of that series may be presented as herein
above authorized for registration of transfer and exchange, and (iii) notices and demands to or upon the Company in respect of the Securities
of that series and this Indenture may be given or served, such designation to continue with respect to such office or agency until the
Company shall, by written notice signed by its President or a Vice President and delivered to the trustee, designate some other office
or agency for such purposes or any of them. If at any time the Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such
presentations, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations,
notices and demands.
SECTION 4.03 Paying
Agents.
| (a) | If the Company shall appoint one or more paying agents for all or any series of the Securities, other
than the Trustee, the Company will cause each such paying agent to execute and deliver to the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this Section: |
| (1) | that it will hold all sums held by it as such agent for the payment of the principal of (and premium,
if any) or interest on the Securities of that series (whether such sums have been paid to it by the Company or by any other obligor of
such Securities) in trust for the benefit of the Persons entitled thereto; |
| (2) | that it will give the Trustee notice of any failure by the Company (or by any other obligor of such Securities)
to make any payment of the principal of (and premium, if any) or interest on the Securities of that series when the same shall be due
and payable; |
| (3) | that it will, at any time during the continuance of any failure referred to in the preceding paragraph
(a)(2) above, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent; and |
| (4) | that it will perform all other duties of paying agent as set forth in this Indenture. |
| (b) | If the Company shall act as its own paying agent with respect to any series of the Securities, it will
on or before each due date of the principal of (and premium, if any) or interest on Securities of that series, set aside, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum sufficient with monies held by all other paying agents to pay such
principal (and premium, if any) or interest so becoming due on Securities of that series until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee of such action, or any failure (by it or any other obligor
on such Securities) to take such action. Whenever the Company shall have one or more paying agents for any series of Securities, it will,
prior to each due date of the principal of (and premium, if any) or interest on any Securities of that series, deposit with the paying
agent a sum sufficient to pay the principal (an premium, if any) or interest so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium or interest, and (unless such paying agent is the Trustee) the Company will promptly
notify the Trustee of this action or failure so to act. |
| (c) | Notwithstanding anything in this Section to the contrary, (i) the agreement to hold sums in trust as provided
in this Section is subject to the provisions of Section 11.05, and (ii) the Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose, pay, or direct any paying agent to pay, to the Trustee all
sums held in trust by the Company or such paying agent, such sums to be held by the Trustee upon the same terms and conditions as those
upon which such sums were held by the Company or such paying agent; and, upon such payment by any paying agent to the Trustee, such paying
agent shall be released from all further liability with respect to such money. |
SECTION 4.04 Appointment
to Fill Vacancy in Office of Trustee.
The Company, whenever necessary
to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall
at all times be a Trustee hereunder.
SECTION 4.05 Compliance
with Consolidation Provisions.
The Company will not, while
any of the Securities remain Outstanding, consolidate with or merge into any other Person, in either case where the Company is not the
survivor of such transaction, or sell or convey all or substantially all of its property to any other company unless the provisions of
Article X hereof are complied with.
ARTICLE
V
SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 5.01 Company
to Furnish Trustee Names and Addresses of Securityholders.
If the Company is not the
Security Registrar, the Company will furnish or use reasonable efforts to cause to be furnished to the Trustee (a) on each regular record
date (as defined in Section 2.03) a list, in such form as the Trustee may reasonably require, of the names and addresses of the holders
of each series of Securities as of such regular record date, provided that the Company shall not be obligated to furnish or cause to furnish
such list at any time that the list shall not differ in any respect from the most recent list furnished to the Trustee by the Company
and (b) at such other times as the Trustee may request in writing within 30 days after the receipt by the Company of any such request,
a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished; provided, however, that,
in either case, no such list need be furnished for any series for which the Trustee shall be the Security Registrar.
SECTION 5.02 Preservation
of Information; Communications with Securityholders.
| (a) | The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the
names and addresses of the holders of Securities contained in the most recent list furnished to it as provided in Section 5.01 and as
to the names and addresses of holders of Securities received by the Trustee in its capacity as Security Registrar (if acting in such capacity)
and shall otherwise comply with Section 312(a) of the Trust Indenture Act. |
| (b) | The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list
so furnished. |
| (c) | Securityholders may communicate as provided in Section 312(b) of the Trust Indenture Act with other Securityholders
with respect to their rights under this Indenture or under the Securities. |
SECTION 5.03 Reports
by the Company.
| (a) | The Company covenants and agrees to file with the Trustee, within 15 days after the Company is required
to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) that the Company may be required
to file with the Commission pursuant to Section 13 or |
Section 15(d) of the Exchange Act; or,
if the Company is not required to file information, documents or reports pursuant to either of such sections, then to file with the Trustee
and the Commission, in accordance with the rules and regulations prescribed from time to time by the Commission, such of the supplementary
and periodic information, documents and reports that may be required pursuant to Section 13 of the Exchange Act, in respect of a security
listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations; provided,
however, the Company shall not be required to deliver to the Trustee any materials for which the Company has sought and received confidential
treatment by the Commission. The Company also shall comply with the other provisions of Section 314(a) of the Trust Indenture Act.
| (b) | The Company covenants and agrees to file with the Trustee and the Commission, in accordance with the rules
and regulations prescribed from to time by the Commission, such additional information, documents and reports with respect to compliance
by the Company with the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and
regulations. |
| (c) | The Company covenants and agrees to transmit by mail, first class postage prepaid, or reputable over-night
delivery service that provides for evidence of receipt, to the Securityholders, as their names and addresses appear upon the Security
Register, within 30 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required
to be filed by the Company pursuant to subsections (a) and (b) of this Section as may be required by rules and regulations prescribed
from time to time by the Commission. |
SECTION 5.04 Reports
by the Trustee.
| (a) | The Trustee shall transmit to holders as provided in Section 313 of the Trust Indenture Act such reports
concerning the Trustee and its actions under this Indenture as may be required by Section 313 of the Trust Indenture Act at the times
and in the manner provided by the Trust Indenture Act. |
| (b) | A copy of each such report shall, at the time of such transmission to Securityholders, be filed by the
Trustee with the Company, with each stock exchange upon which any Securities are listed (if so listed) and, if required by Section 313
of the Trust Indenture Act, also with the Commission. The Company agrees to notify the Trustee when any Securities become listed on any
stock exchange. |
ARTICLE
VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01 Events
of Default.
| (a) | Whenever used herein with respect to Securities of a particular series, “Event of Default”
means any one or more of the following events that has occurred and is continuing: |
| (1) | the Company defaults in the payment of any installment of interest upon any of the Securities of that
series, as and when the same shall become due and payable, and continuance of such default for a period of 90 days; provided, however,
that a valid extension of an interest payment period by the Company in accordance with the terms of any indenture supplemental hereto
shall not constitute a default in the payment of interest for this purpose; |
| (2) | the Company defaults in the payment of the principal of (or premium, if any, on) any of the Securities
of that series as and when the same shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or
in any payment required by any sinking or analogous fund established with respect to that series; provided, however, that a valid extension
of the maturity of such Securities in accordance with the terms of any indenture supplemental hereto shall not constitute a default in
the payment of principal or premium, if any; |
| (3) | the Company fails to observe or perform any other of its covenants or agreements with respect to that
series contained in this Indenture or otherwise established with respect to that series of Securities pursuant to Section 2.01 hereof
(other than a covenant or agreement that has been expressly included in this Indenture solely for the benefit of one or more series of
Securities other than such series) for a period of 90 days after the date on which written notice of such failure, requiring the same
to be remedied and stating that such notice is a “Notice of Default” hereunder, shall have been given to the Company by the
Trustee, by registered or certified mail, or to the Company and the Trustee by the holders of not less than a majority in principal amount
of the Securities of that series at the time Outstanding; |
| (4) | the Company pursuant to or within the meaning of any Bankruptcy Law (i) commences a voluntary case, (ii)
consents to the entry of an order for relief against it in an involuntary case, (iii) consents to the appointment of a Custodian of it
or for all or substantially all of its property or (iv) makes a general assignment for the benefit of its creditors; or |
| (5) | a court of competent jurisdiction enters an order under any Bankruptcy Law that (i) is for relief against
the Company in an involuntary case, (ii) appoints a Custodian of the Company for all or substantially all of its property, or (iii) orders
the liquidation of the Company, and the order or decree remains unstayed and in effect for 90 consecutive days. |
| (b) | In each and every such case, unless the principal of all the Securities of that series shall have already
become due and payable, either the Trustee or the holders of not less than a majority in aggregate principal amount of the Securities
of that series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such Securityholders),
may declare the principal (or, if any Securities of that series are discount securities, that portion of the principal amount as may be
specified in the terms of that series pursuant to Section 2.01(a)(16)) of (and premium, if any, on) and accrued and unpaid interest, if
any, on all the Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall
be immediately due and payable. Notwithstanding the foregoing, the payment of such principal (or, if any Securities of that series are
discount securities, that portion of the principal amount as may be specified in the terms of that series pursuant to Section 2.01(a)(16))
of (and premium, if |
any, on) and accrued and unpaid interest,
if any, on the Securities of such series shall remain subordinated to the extent provided in Article XIV.
| (c) | At any time after the principal of the Securities of that series shall have been so declared due and payable,
and before a judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the holders
of a majority in aggregate principal amount of the Securities of that series then Outstanding hereunder (or, by action at a meeting of
holders of the Securities of such series in accordance with Section 8.09, the holders of a majority in aggregate principal amount of the
Securities of such series then Outstanding represented at such meeting), by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if: (i) the Company has paid or deposited with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Securities of that series and the principal of (and premium, if any, on) any and all Securities
of that series that shall have become due otherwise than by acceleration and (ii) any and all Events of Default under this Indenture with
respect to such series, other than the nonpayment of principal of (and premium, if any, on) and accrued and unpaid interest, if any, on
Securities of that series that shall have become due solely because of such acceleration, shall have been remedied, cured or waived as
provided in Section 6.06. No such rescission and annulment shall extend to or shall affect any subsequent default or impair any right
consequent thereon. |
| (d) | In case the Trustee shall have proceeded to enforce any right with respect to Securities of that series
under this Indenture and such proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any
other reason or shall have been determined adversely to the Trustee, then and in every such case, subject to any determination in such
proceedings, the Company, and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights,
remedies and powers of the Company and the Trustee shall continue as though no such proceedings had been taken. |
SECTION 6.02 Collection
of Indebtedness and Suits for Enforcement by Trustee.
| (a) | The Company covenants that (1) in case it shall default in the payment of any installment of interest
on any of the Securities of a series, or any payment required by any sinking or analogous fund established with respect to that series
as and when the same shall have become due and payable, and such default shall have continued for a period of 90 Business Days, or (2)
in case it shall default in the payment of the principal of (or premium, if any, on) any of the Securities of a series when the same shall
have become due and payable, whether upon maturity of the Securities of a series or upon redemption or upon declaration or otherwise,
then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the holders of the Securities of that series,
the whole amount that then shall have been become due and payable on all such Securities for principal (and premium, if any) or interest,
or both, as the case may be, with interest upon the overdue principal (and premium, if any) and (to the extent that payment of such interest
is enforceable under applicable law) upon overdue installments of interest at the rate per annum expressed in the Securities of that series;
and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, and the amount payable
to the Trustee under Section 7.06. |
| (b) | If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name
and as trustee of an express trust, shall be entitled and empowered to |
institute any action or proceedings at
law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final
decree, and may enforce any such judgment or final decree against the Company or other obligor upon the Securities of that series and
collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or other obligor
upon the Securities of that series, wherever situated.
| (c) | In case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement,
composition or judicial proceedings affected the Company, or its creditors or property, the Trustee shall have power to intervene in such
proceedings and take any action therein that may be permitted by the court and shall (except as may be otherwise provided by law) be entitled
to file such proofs of claim and other papers and documents as may be necessary or advisable in order to have the claims of the Trustee
and of the holders of Securities of such series allowed for the entire amount due and payable by the Company under this Indenture at the
date of institution of such proceedings and for any additional amount that may become due and payable by the Company after such date,
and to collect and receive any moneys or other property payable or deliverable on any such claim, and to distribute the same after the
deduction of the amount payable to the Trustee under Section 7.06; and any receiver, assignee or trustee in bankruptcy or reorganization
is hereby authorized by each of the holders of Securities of such series to make such payments to the Trustee, and, in the event that
the Trustee shall consent to the making of such payments directly to such Securityholders, to pay to the Trustee any amount due it under
Section 7.06. |
| (d) | All rights of action and of asserting claims under this Indenture, or under any of the terms established
with respect to Securities of that series, may be enforced by the Trustee without the possession of any of such Securities, or the production
thereof at any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought
in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for payment to the Trustee of any
amounts due under Section 7.06, be for the ratable benefit of the holders of the Securities of such series. |
In case of an Event of Default
hereunder, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or
in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of
the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture
or by law.
Nothing contained herein shall
be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities of that series or the rights of any holder thereof or to authorize the
Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
SECTION 6.03 Application
of Moneys Collected.
Any moneys collected by the
Trustee pursuant to this Article with respect to a particular series of Securities shall be applied in the following order, at the date
or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal (or premium, if any) or interest,
upon presentation of the Securities of that series, and notation thereon the payment, if only partially paid, and upon surrender thereof
if fully paid:
| FIRST: | To the payment of costs and expenses of collection and of all amounts payable to the Trustee under Section
7.06; |
| SECOND: | To the payment of all Senior Indebtedness of the Company if and to the extent required by Article XIV;
and |
| THIRD: | To the payment of the amounts then due and unpaid upon Securities of such series for principal (and premium,
if any) and interest, in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority
of any kind, according to the amounts due and payable on such Securities for principal (and premium, if any) and interest, respectively. |
SECTION 6.04 Limitation
on Suits.
No holder of any Security
of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless (i) such holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance
thereof with respect to the Securities of such series specifying such Event of Default, as hereinbefore provided; (ii) the holders of
not less than a majority in aggregate principal amount of the Securities of such series then Outstanding shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name as trustee hereunder; (iii) such holder or holders shall
have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein
or thereby; and (iv) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity, shall have failed to institute
any such action, suit or proceeding and (v) during such 60 day period, the holders of a majority in principal amount of the Securities
of that series (or such amount as shall have acted at a meeting of the holders of Securities of such series pursuant to the provisions
of this Indenture) do not give the Trustee a direction inconsistent with the request; provided, however, that no one or more of such holders
may use this Indenture to prejudice the rights of another holder or to obtain preference or priority over another holder.
Notwithstanding anything contained
herein to the contrary, any other provisions of this Indenture, the right of any holder of any Security to receive payment of the principal
of (and premium, if any) and interest on such Security, as therein provided, on or after the respective due dates expressed in such Security
(or in the case of redemption, on the redemption date), or to institute suit for the enforcement of any such payment on or after such
respective dates or redemption date, shall not be impaired or affected without the consent of such holder and by accepting a Security
hereunder it is expressly understood, intended and covenanted by the taker and holder of every Security of such series with every other
such taker and holder and the Trustee, that no one or more holders of Securities of such series shall have any right in any manner whatsoever
by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of the holders of any other of
such Securities, or to obtain or seek to obtain priority over or preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all holders of Securities of such series.
For the protection and enforcement of the provisions of this Section, each and every Securityholder and the Trustee shall be entitled
to such relief as can be given either at law or in equity.
SECTION 6.05 Rights
and Remedies Cumulative; Delay or Omission Not Waiver.
| (a) | Except as otherwise provided in Section 2.07, all powers and remedies given by this Article to the Trustee
or to the Securityholders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any other powers and remedies
available to the Trustee or |
the holders of the Securities, by judicial
proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture or otherwise
established with respect to such Securities.
| (b) | No delay or omission of the Trustee or of any holder of any of the Securities to exercise any right or
power accruing upon any Event of Default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed
to be a waiver of any such default or on acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy
given by this Article or by law to the Trustee or the Securityholders may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Securityholders. |
SECTION 6.06 Control
by Securityholders.
The holders of a majority
in aggregate principal amount of the Securities of any series at the time Outstanding, determined in accordance with Section 8.01, shall
have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee with respect to such series; provided, however, that such direction shall not be in conflict
with any rule of law or with this Indenture or be unduly prejudicial to the rights of holders of Securities of any other series at the
time Outstanding determined in accordance with Section 8.01. Subject to the provisions of Section 7.01, the Trustee shall have the right
to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer or Officers of the Trustee, determine
that the proceeding so directed would involve the Trustee in personal liability.
The holders either (a) through
the written consent of not less than a majority in aggregate principal amount of the Securities of any series at the time Outstanding
or (b) by action at a meeting of holders of the Securities of such series in accordance with Section 8.09, by the holders of a majority
in aggregate principal amount of the Securities of such series then Outstanding represented at such meeting, may on behalf of the holders
of all of the Securities of such series waive any past default in the performance of any of the covenants contained herein or established
pursuant to Section 2.01 with respect to such series and its consequences, except a default in the payment of the principal of, or premium,
if any, or interest on, any of the Securities of that series as and when the same shall become due by the terms of such Securities otherwise
than by acceleration (unless such default has been cured and a sum sufficient to pay all matured installments of interest and principal
and any premium has been deposited with the Trustee (in accordance with Section 6.01(c)) and except in respect a provision hereof which,
under Section 9.02, cannot be modified or amended without the consent of the holders of each Outstanding Security affected; provided
however that this Section shall not limit the right of holders of Securities of a series to rescind and annul any acceleration as set
forth in Section 6.01. Upon any such waiver, the default covered thereby shall be deemed to be cured for all purposes of this Indenture
and the Company, the Trustee and the holders of the Securities of such series shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. The provisions
which otherwise would be automatically deemed to be contained in this Indenture pursuant to Section 316(a)(1) of the Trust Indenture Act
are hereby expressly excluded from this Indenture, except to the extent such provisions are expressly included herein.
SECTION 6.07 Undertaking
to Pay Costs.
All parties to this Indenture
agree, and each holder of any Securities by such holder’s acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require, in any suit for the
enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted
by any Securityholder, or group of Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities
of any series, or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of (or premium, if
any) or interest on any Security of such series, on or after the respective due dates expressed in such Security or established pursuant
to this Indenture.
ARTICLE
VII
CONCERNING THE TRUSTEE
SECTION 7.01 Certain
Duties and Responsibilities of Trustee.
| (a) | The Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a series
and after the curing of all Events of Default with respect to the Securities of that series that may have occurred, shall undertake to
perform with respect to the Securities of such series such duties and only such duties as are specifically set forth in this Indenture,
and no implied covenants shall be read into this Indenture against the Trustee. In case an Event of Default with respect to the Securities
of a series has occurred (that has not been cured or waived), the Trustee shall exercise with respect to Securities of that series such
of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own affairs. |
| (b) | No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except that: |
| (1) | prior to the occurrence of an Event of Default with respect to the Securities of a series and after the
curing or waiving of all such Events of Default with respect to that series that may have occurred: |
| (i) | the duties and obligations of the Trustee shall with respect to the Securities of such series be determined
solely by the express provisions of this Indenture, and the Trustee shall not be liable with respect to the Securities of such series
except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and |
| (ii) | in the absence of bad faith on the part of the Trustee, the Trustee may with respect to the Securities
of such series conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or
opinions that by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine
the |
same to determine whether or not they
conform to the requirement of this Indenture;
| (2) | the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer
or Responsible Officers of the Trustee, unless it shall be proved that the Trustee, was negligent in ascertaining the pertinent facts; |
| (3) | the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the holders of not less than a majority in principal amount of the Securities of any series
at the time Outstanding relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee under this Indenture with respect to the Securities of that series; and |
| (4) | None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights
or powers, if there is reasonable ground for believing that the repayment of such funds or liability is not reasonably assured to it under
the terms of this Indenture or adequate indemnity against such risk is not reasonably assured to it. |
SECTION 7.02 Certain
Rights of Trustee.
Except as otherwise provided
in Section 7.01:
| (a) | The Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order, approval, bond, security or other paper or document believed
by it to be genuine and to have been signed or presented by the proper party or parties; |
| (b) | Any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced
by a Board Resolution or an instrument signed in the name of the Company, by the President or any Vice President and by the Secretary
or an Assistant Secretary or the Treasurer or an Assistant Treasurer thereof (unless other evidence in respect thereof is specifically
prescribed herein); |
| (c) | The Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in respect of any action taken or suffered or omitted hereunder in good faith
and in reliance thereon; |
| (d) | The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this
Indenture at the request, order or direction of any of the Securityholders, pursuant to the provisions of this Indenture, unless such
Securityholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that may
be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of
an Event of Default with respect to a series of the Securities (that has not been cured or waived) to exercise with respect to Securities
of that series such of the rights and powers vested in it by this Indenture, and to use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; |
| (e) | The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith and believed
by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; |
| (f) | The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, security, or other papers or documents,
unless requested in writing so to do by the holders of not less than a majority in principal amount of the Outstanding Securities of the
particular series affected thereby (determined as provided in Section 8.04); provided, however, that if the payment within a reasonable
time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion
of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such costs, expenses or liabilities as a condition to so proceeding. The reasonable expense of every such
examination shall be paid by the Company or, if paid by the Trustee, shall be repaid by the Company upon demand; and |
| (g) | The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly
or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent
or attorney appointed with due care by it hereunder. |
SECTION 7.03 Trustee
Not Responsible for Recitals or Issuance of Securities.
| (a) | The recitals contained herein and in the Securities shall be taken as the statements of the Company, and
the Trustee assumes no responsibility for the correctness of the same. |
| (b) | The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. |
| (c) | The Trustee shall not be accountable for the use or application by the Company of any of the Securities
or of the proceeds of such Securities, or for the use or application of any moneys paid over by the Trustee in accordance with any provision
of this Indenture or established pursuant to Section 2.01, or for the use or application of any moneys received by any paying agent other
than the Trustee. |
SECTION 7.04 May
Hold Securities.
The Trustee or any paying
agent or Security Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights
it would have if it were not Trustee, paying agent or Security Registrar.
SECTION 7.05 Moneys
Held in Trust.
Subject to the provisions
of Section 11.05, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes
for which they were received, but need not be segregated from other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any moneys received by it hereunder except such as it may agree with the Company to pay thereon.
SECTION 7.06 Compensation
and Reimbursement.
| (a) | The Company covenants and agrees to pay to the Trustee, and the Trustee shall be entitled to, such reasonable
compensation (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust), as the
Company, and the Trustee may from time to time agree in writing, for all services rendered by it in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties hereunder of the Trustee, and, except as otherwise expressly
provided herein, the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and
the expenses and disbursements of its counsel and of all Persons not regularly in its employ) except any such expense, disbursement or
advance as may arise from its negligence or bad faith. The Company also covenants to indemnify the Trustee (and its officers, agents,
directors and employees) for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith
on the part of the Trustee and arising out of or in connection with the acceptance or administration of this trust, including the costs
and expenses of defending itself against any claim of liability in the premises. |
| (b) | The obligations of the Company under this Section to compensate and indemnify the Trustee and to pay or
reimburse the Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder. Such additional indebtedness
shall be secured by a lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the benefit of the holders of particular Securities. |
SECTION 7.07 Reliance
on Officers’ Certificate.
Except as otherwise provided
in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that
a matter be proved or established prior to taking or suffering or omitting to take any action hereunder, such matter (unless other evidence
in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed
to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee and such certificate, in the absence
of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted
to be taken by it under the provisions of this Indenture upon the faith thereof.
SECTION 7.08 Disqualification;
Conflicting Interests.
If the Trustee has or shall
acquire any “conflicting interest” within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the
Company shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
SECTION 7.09 Corporate
Trustee Required; Eligibility.
There shall at all times be
a Trustee with respect to the Securities issued hereunder which shall at all times be a corporation organized and doing business under
the laws of the United States of America or any State or Territory thereof or of the District of Columbia, or a corporation or other Person
permitted to act as trustee by the Commission, authorized under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least 50 million U.S. dollars ($50,000,000), and subject to supervision or examination by Federal, State, Territorial,
or District of Columbia authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus
of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition so published. The Company may not, nor may any Person
directly or indirectly controlling, controlled by, or under common control with the Company, serve as Trustee. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 7.10.
SECTION 7.10 Resignation
and Removal; Appointment of Successor.
| (a) | The Trustee or any successor hereafter appointed, may at any time resign with respect to the Securities
of one or more series by giving written notice thereof to the Company and by transmitting notice of resignation by mail, first class postage
prepaid, to the Securityholders of such series, as their names and addresses appear upon the Security Register. Upon receiving such notice
of resignation, the Company shall promptly appoint a successor trustee with respect to Securities of such series by written instrument,
in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and
one copy to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within 30 days after
the mailing of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment
of a successor trustee with respect to Securities of such series, or any Securityholder of that series who has been a bona fide holder
of a Security or Securities for at least six months may on behalf of himself and all others similarly situated, petition any such court
for the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, appoint
a successor trustee. |
| (b) | In case at any time any one of the following shall occur: |
| (1) | the Trustee shall fail to comply with the provisions of Section 7.08 after written request therefor by
the Company or by any Securityholder who has been a bona fide holder of a Security or Securities for at least six months; or |
| (2) | the Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 and shall fail
to resign after written request therefor by the Company or by any such Securityholder; or |
| (3) | the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or commence
a voluntary bankruptcy proceeding, or a receiver of the Trustee or of its property shall be appointed or consented to, or any public officer
shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, the Company may remove the Trustee with respect to all Securities and appoint a successor trustee by written instrument,
in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and
one copy to the successor trustee, or, unless the Trustee’s duty to resign is stayed as provided herein, any Securityholder who
has been a bona fide holder of a Security or Securities for at least six months may, on behalf of that holder and all others similarly
situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee. Such
court may thereupon after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee. |
| (c) | The holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding
may at any time remove the Trustee with respect to such series by so notifying the Trustee and the Company and may appoint a successor
Trustee for such series with the consent of the Company. |
| (d) | Any resignation or removal of the Trustee and appointment of a successor trustee with respect to the Securities
of a series pursuant to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee
as provided in Section 7.11. |
| (e) | Any successor trustee appointed pursuant to this Section may be appointed with respect to the Securities
of one or more series or all of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular
series. |
SECTION 7.11 Acceptance
of Appointment By Successor.
| (a) | In case of the appointment hereunder of a successor trustee with respect to all Securities, every such
successor trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver
an instrument transferring to such successor trustee all the rights, powers, and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor trustee all property and money held by such retiring Trustee hereunder. |
| (b) | In case of the appointment hereunder of a successor trustee with respect to the Securities of one or more
(but not all) series, the Company, the retiring Trustee and each successor trustee with respect to the Securities of one or more series
shall execute and deliver an indenture supplemental hereto wherein each successor trustee shall accept such appointment and which (1)
shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor trustee all
the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment
of such successor trustee relates, (2) shall contain such provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, that each
such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any
other such Trustee and that no Trustee shall be responsible for any act or failure to act on the part of any other Trustee hereunder;
and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective
to the extent provided therein, such retiring Trustee shall with respect to the Securities of that or those series to which the appointment
of such successor trustee relates have no further responsibility for the exercise of rights and powers or for the performance of the duties
and obligations vested in the Trustee under this Indenture, and each such successor trustee, without any further act, deed or conveyance,
shall become vested with |
all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor trustee relates;
but, on request of the Company or any successor trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor
trustee, to the extent contemplated by such supplemental indenture, the property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of such successor trustee relates.
| (c) | Upon request of any such successor trustee, the Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor trustee all such rights, powers and trusts referred to in paragraph (a)
or (b) of this Section, as the case may be. |
| (d) | No successor trustee shall accept its appointment unless at the time of such acceptance such successor
trustee shall be qualified and eligible under this Article. |
| (e) | Upon acceptance of appointment by a successor trustee as provided in this Section, the Company shall transmit
notice of the succession of such trustee hereunder by mail, first class postage prepaid, to the Securityholders, as their names and addresses
appear upon the Security Register. If the Company fails to transmit such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be transmitted at the expense of the Company. |
SECTION 7.12 Merger,
Conversion, Consolidation or Succession to Business.
Any corporation into which
the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation succeeding to the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided that such corporation shall be qualified under the provisions of Section 7.08
and eligible under the provisions of Section 7.09, without the execution or filing of any paper or any further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated
such Securities.
SECTION 7.13 Preferential
Collection of Claims Against the Company.
The Trustee shall comply with
Section 311(a) of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act.
A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
ARTICLE
VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01 Evidence
of Action by Securityholders.
Whenever in this Indenture
it is provided that the holders of a majority or specified percentage in aggregate principal amount of the Securities of a particular
series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of
any other action), the
fact that at the time of taking any such action
the holders of such majority or specified percentage of that series have joined therein may be evidenced by any instrument or any number
of instruments of similar tenor executed by such holders of Securities of that series in Person or by agent or proxy appointed in writing.
If the Company shall solicit
from the Securityholders of any series any request, demand, authorization, direction, notice, consent, waiver or other action, the Company
may, at its option, as evidenced by an Officers’ Certificate, fix in advance a record date for such series for the determination
of Securityholders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action, but the Company
shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver
or other action may be given before or after the record date, but only the Securityholders of record at the close of business on the record
date shall be deemed to be Securityholders for the purposes of determining whether Securityholders of the requisite proportion of Outstanding
Securities of that series have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver
or other action, and for that purpose the Outstanding Securities of that series shall be computed as of the record date; provided, however,
that no such authorization, agreement or consent by such Securityholders on the record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later than six months after the record date.
SECTION 8.02 Proof
of Execution by Securityholders.
Subject to the provisions
of Section 7.01, proof of the execution of any instrument by a Securityholder (such proof will not require notarization) or his agent
or proxy and proof of the holding by any Person of any of the Securities shall be sufficient if made in the following manner:
| (a) | The fact and date of the execution by any such Person of any instrument may be proved in any reasonable
manner acceptable to the Trustee. |
| (b) | The ownership of Securities shall be proved by the Security Register of such Securities or by a certificate
of the Security Registrar thereof. |
| (c) | The Trustee may require such additional proof of any matter referred to in this Section as it shall deem
necessary. |
SECTION 8.03 Who
May be Deemed Owners.
Prior to the due presentment
for registration of transfer of any Security, the Company, the Trustee, any paying agent and any Security Registrar may deem and treat
the Person in whose name such Security shall be registered upon the books of the Company as the absolute owner of such Security (whether
or not such Security shall be overdue and notwithstanding any notice of ownership or writing thereon made by anyone other than the Security
Registrar) for the purpose of receiving payment of or on account of the principal of, premium, if any, and (subject to Section 2.03)
interest on such Security and for all other purposes; and neither the Company nor the Trustee nor any paying agent nor any Security Registrar
shall be affected by any notice to the contrary.
SECTION 8.04 Certain
Securities Owned by Company Disregarded.
In determining whether the
holders of the requisite aggregate principal amount of Securities of a particular series have concurred in any direction, consent of waiver
under this Indenture, the Securities of that series that are owned by the Company or any other obligor on the Securities of that series
or by any
Person directly or indirectly controlling or controlled
by or under common control with the Company or any other obligor on the Securities of that series shall be disregarded and deemed not
to be Outstanding for the purpose of any such determination, except that for the purpose of determining whether the Trustee shall be protected
in relying on any such direction, consent or waiver, only Securities of such series that the Trustee actually knows are so owned shall
be so disregarded. The Securities so owned that have been pledged in good faith may be regarded as Outstanding for the purposes of this
Section, if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities
and that the pledgee is not a Person directly or indirectly controlling or controlled by or under direct or indirect common control with
the Company or any such other obligor. In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
SECTION 8.05 Actions
Binding on Future Securityholders.
At any time prior to (but
not after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the holders of the majority
or percentage in aggregate principal amount of the Securities of a particular series specified in this Indenture in connection with such
action, any holder of a Security of that series that is shown by the evidence to be included in the Securities the holders of which have
consented to such action may, by filing written notice with the Trustee, and upon proof of holding as provided in Section 8.02, revoke
such action so far as concerns such Security. Except as aforesaid any such action taken by the holder of any Security shall be conclusive
and binding upon such holder and upon all future holders and owners of such Security, and of any Security issued in exchange therefor,
on registration of transfer thereof or in place thereof, irrespective of whether or not any notation in regard thereto is made upon such
Security. Any action taken by the holders of the majority or percentage in aggregate principal amount of the Securities of a particular
series specified in this Indenture in connection with such action shall be conclusively binding upon the Company, the Trustee and the
holders of all the Securities of that series.
SECTION 8.06 Purposes
for Which Meetings May Be Called.
A meeting of holders of any
series of Securities may be called at any time and from time to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by holders of
such series of Securities.
Notwithstanding anything contained
in this Article VIII, the Trustee may, during the pendency of a Default or an Event of Default, call a meeting of holders of any series
of Securities in accordance with its standard practices.
SECTION 8.07 Call
Notice and Place of Meetings.
| (a) | The Trustee may at any time call a meeting of holders of any series of Securities for any purpose specified
in Section 8.06 hereof, to be held at such time and at such place in The City of New York or Boston, Massachusetts. Notice of every meeting
of holders of any series of Securities, setting forth the time and the place of such meeting, in general terms the action proposed to
be taken at such meeting and the percentage of the principal amount of the Outstanding Securities of such series which shall constitute
a quorum at such meeting, shall be given, in the manner provided in Section 13.04 hereof, not less than 21 nor more than 180 days prior
to the date fixed for the meeting to holders of Outstanding Securities of such series. |
| (b) | In case at any time the Company, pursuant to a Board Resolution, or the holders of at least 10% in principal
amount of the Outstanding Securities of any series shall have requested the Trustee to call a meeting of the holders of Securities of
such series for any purpose specified in Section 8.06 hereof, by written request setting forth in reasonable detail the action proposed
to be taken at the meeting, and the Trustee shall not have made the first publication of the notice of such meeting within 21 days after
receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the holders
of Securities of such series in the amount specified, as the case may be, may determine the time and the place in The City of New York
or Boston, Massachusetts for such meeting and may call such meeting for such purposes by giving notice thereof as provided in paragraph
(a) of this Section. |
SECTION 8.08 Persons
Entitled To Vote at Meetings.
To be entitled to vote at
any meeting of holders of Securities of a given series, a Person shall be (a) a holder of one or more Outstanding Securities of such series
or (b) a Person appointed by an instrument in writing as proxy for a holder or holders of one or more Outstanding Securities of such series
by such holder or holders. The only Persons who shall be entitled to be present or to speak at any meeting of holders shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 8.09 Quorum;
Action.
The Persons entitled to vote
a majority in aggregate principal amount of the Outstanding Securities of a given series shall constitute a quorum with respect to a meeting
of holders of Outstanding Securities of such series. In the absence of a quorum within 30 minutes of the time appointed for any such meeting,
the meeting shall, if convened at the request of holders of Securities of such series, be dissolved. In any other case, the meeting may
be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting.
In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than
10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening of
any adjourned meeting shall be given as provided in Section 8.07(a) hereof, except that such notice need be given only once and not less
than five days prior to the date on which the meeting is scheduled to be reconvened.
At a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid, any resolution and all matters (except as limited by the proviso
to the first paragraph of Section 9.02 hereof) shall be effectively passed and decided if passed or decided by the Persons entitled to
vote not less than a majority in aggregate principal amount of Outstanding Securities of a series represented and voting at such meeting
with respect to a meeting of holders of Outstanding Securities of such series.
Any resolution passed or decisions
taken at any meeting of holders of Securities duly held in accordance with this Section shall be binding on all the holders of Securities
of such series, whether or not present or represented at the meeting.
SECTION 8.10 Determination
of Voting Rights; Conduct and Adjournment of Meetings.
| (a) | Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations
as it may deem advisable for any meeting of holders of Securities in regard to proof of the holding of Securities and of the appointment
of proxies and in regard to the appointment and duties of inspectors of votes, the submission and |
examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate.
| (b) | The Trustee shall, by an instrument in writing, appoint a temporary chairman (which may be the Trustee)
of the meeting, unless the meeting shall have been called by the Company or by holders of Securities of a given series as provided in
Section 8.07(b) hereof, in which case the Company or the holders of Securities of such series calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote
of the Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting. |
| (c) | At any meeting, each holder of a Security of the series in respect of which such meeting is being held
or proxy shall be entitled to one vote for each $1,000 principal amount of Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any Security of such series challenged as not Outstanding
and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a holder
of a Security of such series or proxy. |
| (d) | Any meeting of holders of Securities duly called pursuant to Section 8.07 hereof at which a quorum is
present may be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of
the series in respect of which such meeting is being held represented at the meeting, and the meeting may be held as so adjourned without
further notice. |
SECTION 8.11 Counting
Votes and Recording Action of Meetings.
The vote upon any resolution
submitted to any meeting of holders of Securities of a given series shall be by written ballots on which shall be subscribed the signatures
of the holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding
Securities of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of each
meeting of holders of Securities of such series shall be prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons having
knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section
8.07 hereof and, if applicable, Section 8.09 hereof. Each copy shall be signed and verified by the affidavits of the permanent chairman
and secretary of the meeting and one such copy shall be delivered to the Company and another to the Trustee to be preserved by the Trustee,
the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
ARTICLE
IX
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental
Indentures Without the Consent of Securityholders.
In addition to any supplemental
indenture otherwise authorized by this Indenture, the Company and the Trustee may from time to time and at any time enter into an indenture
or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as then in effect), without the consent
of the Securityholders, for one or more of the following purposes:
| (a) | cure any ambiguity, correct or supplement any provision herein which may be inconsistent with any other
provision herein or which is otherwise defective, or make any other provisions with respect to matters or questions arising under this
Indenture which the Company and the Trustee may deem necessary or desirable and which shall not be inconsistent with the provisions of
this Indenture; |
| (b) | to comply with Article X; |
| (c) | to provide for uncertificated Securities in addition to or in place of certificated Securities; |
| (d) | to add to the covenants of the Company for the benefit of the holders of all or any Series of Securities
(and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being
included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company; |
| (e) | to add to, delete from, or revise the conditions, limitations, and restrictions on the authorized amount,
terms, or purposes of issue, authentication, and delivery of Securities, as herein set forth; |
| (f) | to make any change that does not adversely affect the rights of any Securityholder in any material respect; |
| (g) | to provide for the issuance of and establish the form and terms and conditions of the Securities of any
series as provided in Section 2.01, to establish the form of any certifications required to be furnished pursuant to the terms of this
Indenture or any series of Securities, or to add to the rights of the holders of any series of Securities; or |
| (h) | comply with the requirements of the Commission in order to effect or maintain the qualification of this
Indenture under the Trust Indenture Act. |
The Trustee is hereby authorized
to join with the Company in the execution of any such supplemental indenture, and to make any further appropriate agreements and stipulations
that may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental indenture that affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture
authorized by the provisions of this Section may be executed by the Company and the Trustee without the consent of the holders of any
of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 9.02.
SECTION 9.02 Supplemental
Indentures With Consent of Securityholders.
With the written consent of
the holders of at least a majority in aggregate principal amount of the Outstanding Securities of any series or by action at a meeting
of holders of the Securities of such series in accordance with Section 8.09, by the holders of a majority in aggregate principal amount
of the Securities of such series then Outstanding represented at such meeting, the Company, when authorized by Board Resolutions, and
the Trustee may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as then in effect) for the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner not covered by Section 9.01 the
rights of the holders of the Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the holders of each Security then Outstanding and affected thereby, (i) extend the fixed maturity of any Securities
of any series, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce
any premium payable upon the redemption thereof, (ii) reduce the aforesaid percentage of Securities, the holders of which are required
to consent to any such supplemental indenture, or any consent or waiver, (iii) reduce the principal amount of discount securities payable
upon acceleration of the maturity of any Securities of any series or (iv) make the principal of or premium or interest on any Security
of a series payable in currency or currency units other than that stated in the Securities of such series.
It shall not be necessary
for the consent of the Securityholders of any series affected thereby under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
SECTION 9.03 Effect
of Supplemental Indentures.
Upon the execution of any
supplemental indenture pursuant to the provisions of this Article or of Section 10.01, this Indenture shall, with respect to such series,
be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the holders of Securities of the series affected thereby shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
SECTION 9.04 Securities
Affected by Supplemental Indentures.
Securities of any series affected
by a supplemental indenture, authenticated and delivered after the execution of such supplemental indenture pursuant to the provisions
of this Article or of Section 10.01, may bear a notation in form approved by the Company, provided such form meets the requirements of
any exchange upon which such series may be listed, as to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of that series so modified as to conform, in the opinion of the Board of Directors of the Company, to any
modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated by the Trustee
and delivered in exchange for the Securities of that series then Outstanding.
SECTION 9.05 Execution
of Supplemental Indentures.
Upon the request of the Company,
accompanied by its Board Resolutions authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee
of evidence of the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be obligated to enter into such supplemental
indenture. The Trustee, subject to the provisions of Section 7.01, may receive an Opinion of Counsel as conclusive evidence that any supplemental
indenture executed pursuant to this Article is authorized or permitted by, and conforms to, the terms of this Article and that it is proper
for the Trustee under the provisions of this Article to join in the execution thereof; provided, however, that such Opinion of Counsel
need not be provided in connection with the execution of a supplemental indenture that establishes the terms of a series of Securities
pursuant to Section 2.01 hereof.
Promptly after the execution
by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Trustee shall transmit by
mail, first class postage prepaid, a notice, setting forth in general terms the substance of such supplemental indenture, to the Securityholders
of all series affected thereby as their names and addresses appear upon the Security Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
ARTICLE
X
SUCCESSOR ENTITY
SECTION 10.01 Company
May Consolidate, Etc.
Nothing contained in this
Indenture or in any of the Securities shall prevent any consolidation or merger of the Company with or into any other Person (whether
or not affiliated with the Company) or successive consolidations or mergers in which the Company or its successor or successors shall
be a party or parties, or shall prevent any sale, conveyance, transfer or other disposition of the property of the Company or its successor
or successors as an entirety, or substantially as an entirety, to any other corporation (whether or not affiliated with the Company or
its successor or successors) authorized to acquire and operate the same; provided, however, the Company hereby covenants and agrees that,
upon any such consolidation or merger (in each case, if the Company is not the survivor of such transaction), sale, conveyance, transfer
or other disposition, the due and punctual payment of the principal of (premium, if any) and interest on all of the Securities of all
series in accordance with the terms of each series, according to their tenor and the due and punctual performance and observance of all
the covenants and conditions of this Indenture with respect to each series or established with respect to such series pursuant to Section 2.01
to be kept or performed by the Company shall be expressly assumed, by supplemental indenture (which shall conform to the provisions of
the Trust Indenture Act, as then in effect) satisfactory in form to the Trustee executed and delivered to the Trustee by the entity formed
by such consolidation, or into which the Company shall have been merged, or by the entity which shall have acquired such property.
SECTION 10.02 Successor
Entity Substituted.
| (a) | In case of any such consolidation, merger, sale, conveyance, transfer or other disposition and upon the
assumption by the successor entity by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee,
of the due and punctual payment of the principal of, premium, if any, and interest on all of the Securities of all series Outstanding
and the due and punctual performance of all of the covenants and conditions of this Indenture or established with respect to each series
of the Securities pursuant to Section 2.01 to be performed by the Company with respect to each series, such successor entity shall succeed
to and be substituted for the Company with the same effect as if it had been named as the Company herein, and thereupon the predecessor
corporation shall be relieved of all obligations and covenants under this Indenture and the Securities. |
| (b) | In case of any such consolidation, merger, sale, conveyance, transfer or other disposition such changes
in phraseology and form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate. |
| (c) | Nothing contained in this Article shall require any action by the Company in the case of a consolidation
or merger of any Person into the Company where the Company is the survivor of such transaction, or the acquisition by the Company, by
purchase or otherwise, |
of all or any part of the property of
any other Person (whether or not affiliated with the Company).
SECTION 10.03 Evidence
of Consolidation, Etc. to Trustee.
The Trustee, subject to the
provisions of Section 7.01, may receive an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale, conveyance,
transfer or other disposition, and any such assumption, comply with the provisions of this Article.
ARTICLE
XI
SATISFACTION AND DISCHARGE
SECTION 11.01 Satisfaction
and Discharge of Indenture.
If at any time: (a) the Company
shall have delivered to the Trustee for cancellation all Securities of a series theretofore authenticated (other than any Securities that
shall have been destroyed, lost or stolen and that shall have been replaced or paid as provided in Section 2.07) and Securities for whose
payment money or Governmental Obligations have theretofore been deposited in trust or segregated and held in trust by the Company (and
thereupon repaid to the Company or discharged from such trust, as provided in Section 11.05); or (b) all such Securities of a particular
series not theretofore delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become due
and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the
giving of notice of redemption, and the Company shall deposit or cause to be deposited with the Trustee as trust funds the entire amount
in moneys or Governmental Obligations sufficient or a combination thereof, sufficient (assuming that no tax liability will be imposed
on the Trustee) in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay at maturity or upon redemption all Securities of that series not theretofore delivered to the
Trustee for cancellation, including principal (and premium, if any) and interest due or to become due to such date of maturity or date
fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other sums payable hereunder with
respect to such series by the Company then this Indenture shall thereupon cease to be of further effect with respect to such series except
for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that shall survive until the date of maturity or redemption
date, as the case may be, and Sections 7.06, 11.05 and 12.01, that shall survive to such date and thereafter, and the Trustee, on demand
of the Company and at the cost and expense of the Company shall execute proper instruments acknowledging satisfaction of and discharging
this Indenture with respect to such series.
SECTION 11.02 Discharge
of Obligations.
If at any time all such Securities
of a particular series not heretofore delivered to the Trustee for cancellation or that have not become due and payable as described in
Section 11.01 shall have been paid by the Company by depositing irrevocably with the Trustee as trust funds moneys or an amount of Governmental
Obligations sufficient to pay at maturity or upon redemption all such Securities of that series not theretofore delivered to the Trustee
for cancellation, including principal (and premium, if any) and interest due or to become due to such date of maturity or date fixed for
redemption, as the case may be, and if the Company shall also pay or cause to be paid all other sums payable hereunder by the Company
with respect to such series, then after the date such moneys or Governmental Obligations, as the case may be, are deposited with the Trustee
the obligations of the Company under this Indenture with respect to such series shall cease to be of further effect except for the provisions
of Sections 2.03, 2.05, 2.07, 4,01, 4.02,
4.03, 7.06, 7.10 and 11.05 hereof that shall survive
until such Securities shall mature and be paid. Thereafter, Sections 7.06 and 11.05 shall survive.
SECTION 11.03 Deposited
Moneys to be Held in Trust.
Subject to Section 11.05,
all moneys or Governmental Obligations deposited with the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and shall
be available for payment as due, either directly or through any paying agent (including the Company acting as its own paying agent), to
the holders of the particular series of Securities for the payment or redemption of which such moneys or Governmental Obligations have
been deposited with the Trustee.
SECTION 11.04 Payment
of Moneys Held by Paying Agents.
In connection with the satisfaction
and discharge of this Indenture all moneys or Governmental Obligations then held by any paying agent under the provisions of this Indenture
shall, upon demand of the Company, be paid to the Trustee and thereupon such paying agent shall be released from all further liability
with respect to such moneys or Governmental Obligations.
SECTION 11.05 Repayment
to Company.
Any moneys or Governmental
Obligations deposited with any paying agent or the Trustee, or then held by the Company, in trust for payment of principal of or premium
or interest on the Securities of a particular series that are not applied but remain unclaimed by the holders of such Securities for two
years after the date upon which the principal of (and premium, if any) or interest on such Securities shall have respectively become due
and payable, shall be repaid to the Company or (if then held by the Company) shall be discharged from such trust in each case, promptly
after the end of any such two-year period or, at the request of the Company, on a later date specified by the Company; and thereupon the
paying agent and the Trustee shall be released from all further liability with respect to such moneys or Governmental Obligations, and
the holder of any of the Securities entitled to receive such payment shall thereafter, as an unsecured general creditor, look only to
the Company for the payment thereof.
ARTICLE
XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 12.01 No
Recourse.
No recourse under or upon
any obligation, covenant or agreement of this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof,
shall be had against any incorporator, stockholder, officer or director, past, present or future as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood
that this Indenture and the obligations issued hereunder are solely corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers or directors as such, of the Company or of any
predecessor or successor corporation, or any of them, because of the creation of the indebtedness hereby authorized, or under or by reason
of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom; and that any
and all such personal liability of every name and nature, either at common law or in equity or by constitution or statute, of, and any
and all such rights and claims against, every such incorporator, stockholder, officer or director as such, because of the creation of
the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained
in this Indenture or in any of the Securities or implied therefrom, are hereby expressly waived and released as a condition of, and as
a consideration for, the execution of this Indenture and the issuance of such Securities.
ARTICLE
XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01 Effect
on Successors and Assigns.
All the covenants, stipulations,
promises and agreements in this Indenture contained by or on behalf of the Company shall bind its successors and assigns, whether so expressed
or not.
SECTION 13.02 Actions
by Successor.
Any act or proceeding by any
provision of this Indenture authorized or required to be done or performed by any board, committee or officer of the Company shall and
may be done and performed with like force and effect by the corresponding board, committee or officer of any corporation that shall at
the time be the lawful successor of the Company.
SECTION 13.03 Surrender
of Company Powers.
The Company by instrument
in writing executed by authority of its Board of Directors and delivered to the Trustee may surrender any of the powers reserved to the
Company, and thereupon such power so surrendered shall terminate both as to the Company and as to any successor corporation.
SECTION 13.04 Notices.
Except as otherwise expressly
provided herein any notice or demand that by any provision of this Indenture is required or permitted to be given or served by the Trustee
or by the holders of Securities to or on the Company may be given or served by being deposited first class postage prepaid in a post-office
letterbox addressed (until another address is filed in writing by the Company with the Trustee), as follows: ProKidney Corp., Attn: James
Coulston, CFO, 2000 Frontis Plaza Blvd., Suite 250, Winston-Salem, North Carolina 27103. Any notice, election, request or demand by the
Company or any Securityholder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given
or made in writing at the Corporate Trust Office of the Trustee. Any notice or communication to a holder shall be mailed by first-class
mail to his address shown on the Security Register kept by the Security Registrar. Failure to mail a notice or communication to a holder
or any defect in such notice or communication shall not affect its sufficiency with respect to other holders. If a notice or communication
is mailed or sent in the manner provided above within the time prescribed, it is duly given as of the date it is mailed, whether or not
the addressee receives it, except that notice to the Trustee or the Company shall only be effective upon receipt thereof by the Trustee
or the Company, respectively. If the Company mails a notice or communication to holders of Securities, it shall mail a copy to the Trustee
at the same time.
SECTION 13.05 Governing
Law.
This Indenture and each Security
shall be deemed to be a contract made under the internal laws of the State of New York, and for all purposes shall be construed in accordance
with the laws of said State.
SECTION 13.06 Treatment
of Securities as Debt.
It is intended that the Securities
will be treated as indebtedness and not as equity for federal income tax purposes. The provisions of this Indenture shall be interpreted
to further this intention.
SECTION 13.07 Compliance
Certificates and Opinions.
| (a) | Upon any application or demand by the Company to the Trustee to take any action under any of the provisions
of this Indenture, the Company, shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent provided
for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent have been complied with, except that in the case of any such application or demand as to which
the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or
demand, no additional certificate or opinion need be furnished. |
| (b) | Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to
compliance with a condition or covenant in this Indenture shall include (1) a statement that the Person making such certificate or opinion
has read such covenant or condition; (2) 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; (3) a statement that, in the opinion of such Person, he has
made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and (4) a statement as to whether or not, in the opinion of such Person, such condition or covenant
has been complied with. |
SECTION 13.08 Payments
on Business Days.
Except as provided pursuant
to Section 2.01 pursuant to a Board Resolution, and as set forth in an Officers’ Certificate, or established in one or more indentures
supplemental to this Indenture, in any case where the date of maturity of interest or principal of any Security or the date of redemption
of any Security shall not be a Business Day, then payment of interest or principal (and premium, if any) may be made on the next succeeding
Business Day with the same force and effect as if made on the nominal date of maturity or redemption, and no interest shall accrue for
the period after such nominal date.
SECTION 13.09 Conflict
with Trust Indenture Act.
If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
SECTION 13.10 Counterparts.
This Indenture may be executed
in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same
instrument.
SECTION 13.11 Separability.
In case any one or more of
the provisions contained in this Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of such Securities,
but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained
herein or therein.
SECTION 13.12 Assignment.
The Company will have the
right at all times to assign any of its rights or obligations under this Indenture to a direct or indirect wholly-owned Subsidiary of
the Company, provided that, in the event of any such assignment, the Company, will remain liable for all such obligations. Subject to
the foregoing, this Indenture is binding upon and inures to the benefit of the parties thereto and their respective successors and assigns.
This Indenture may not otherwise be assigned by the parties thereto.
ARTICLE
XIV
SUBORDINATION OF SECURITIES
SECTION 14.01 Subordination
Terms.
The payment by the Company
of the principal of, premium, if any, and interest on any series of Securities issued hereunder shall be subordinated to the extent set
forth in an indenture supplemental hereto relating to the Securities of such series.
IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly executed all as of the day and year first above written.
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PROKIDNEY CORP. |
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By: |
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Name: |
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Title: |
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As Trustee |
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By: |
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Name: |
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Title: |
Exhibit 5.1
22 November 2023 |
Our Ref: JA/CBY/CM/179141 |
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ProKidney Corp.
c/o Walkers Corporate Limited
190 Elgin Avenue
George Town
Grand Cayman KY1-9008
Cayman Islands |
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Dear Addressees
prokidney
corp.
We have been asked to provide this legal opinion
to you with regards to the laws of the Cayman Islands in connection with a Registration Statement (the "Registration Statement")
on Form S-3 filed on the date hereof by ProKidney Corp. (the "Company") under the United States Securities Act of 1933,
as amended (the "Securities Act"). The Registration Statement registers the issuance and sale of the following under
the Securities Act:
| 1. | the Company’s Class A Ordinary Shares of a par value $0.0001 per share (the "Class A Ordinary
Shares"); |
| 2. | the Company's preference shares of a par value $0.0001 per share (the "Preference Shares"); |
| 3. | rights to purchase Class A Ordinary Shares which may be issued under the terms of one or more rights agreements
(a "Rights Agreement") (the "Rights"); |
| 4. | debt securities consisting of either senior debt securities or subordinated debt securities (the "Debt
Securities"), each series of Debt Securities to be issued under an indenture to be entered into by the Company and the applicable
trustee, substantially in the form attached as an Exhibit to the Registration Statement (together, the "Indenture Documents"),
as each such Indenture Document may be supplemented, in connection with the issuance of each such series (any such supplemental document,
together, the "Supplement"), by a supplemental indenture, officers' certificate, resolution of the board of directors
of the Company (the "Board") or other writing thereunder establishing the form and terms of such series; |
| 5. | warrants to purchase Class A Shares, Preference Shares and/or Debt Securities Rights (the "Warrants"),
which may be issued pursuant to one or more warrant agreements to be entered into between the Company and the warrant agent to be named
therein (the “Warrant Agent”) (each such warrant agreement, a “Warrant Agreement”); and |
Walkers
190 Elgin Avenue, George Town
Grand Cayman KY1-9001, Cayman Islands
T +1 345 949 0100 F +1 345 949 7886
www.walkersglobal.com
Bermuda | British Virgin Islands | Cayman Islands
| Dubai | Guernsey | Hong Kong | Ireland | Jersey | London | Singapore
| 6. | units consisting of Class A Shares, Preference Shares, Debt Securities, Warrants or Rights (the "Units"
and together with the Class A Ordinary Shares and Preference Shares, Rights, Debt Securities and Warrants, the "Securities")
which may be issued pursuant to one or more unit agreements to be entered into among the Company, a bank or trust company, as unit agent
(the “Unit Agent”), and the holders from time to time of the Units (each such unit agreement, a “Unit Agreement”). |
The Registration Statement includes a prospectus
(the "Base Prospectus"), which provides that it will be supplemented in the future by one or more prospectus supplements
(each prospectus supplement together with the Base Prospectus, a "Prospectus").
For the purposes of giving this opinion, we have
examined and relied upon the originals or copies of the documents listed in Schedule 1.
We are Cayman Islands Attorneys at Law and express
no opinion as to any laws other than the laws of the Cayman Islands in force and as interpreted at the date of this opinion. We have not,
for the purposes of this opinion, made any investigation of the laws, rules or regulations of any other jurisdiction.
Based upon the foregoing examinations and the assumptions
and qualifications set out below and having regard to legal considerations which we consider relevant, and under the laws of the Cayman
Islands, as at the date hereof, we give the following opinion in relation to the matters set out below.
| 1. | The Company is an exempted company duly incorporated with limited liability, validly existing under the
laws of the Cayman Islands and in good standing with the Registrar of Companies in the Cayman Islands (the "Registrar"). |
| 2. | With respect to the Class A Ordinary Shares and the Preference Shares: when (a) the Board has taken all
necessary corporate action to approve the issuance thereof, the terms of the offering thereof and related matters; (b) the provisions
of the applicable definitive purchase, underwriting or similar agreement approved by the Board have been satisfied and payment of the
consideration specified therein (being not less than their par value) has been made; and (c) the name of the registered owner thereof
has been entered in the Register of Members of the Company confirming that such shares have been issued credited as fully paid, then the
Class A Ordinary Shares and/or the Preference Shares (as applicable) will have been duly authorised and validly issued, fully paid and
non-assessable (meaning that no additional sums may be levied on the holder thereof in respect of the shares by the Company). |
| 3. | With respect to the Rights, when the applicable Rights Agreement has been duly authorised, executed and
delivered by all necessary corporate action of the Company, and when the specific terms of a particular issuance of Rights have been duly
authorised in accordance with the terms of the applicable Rights Agreement and authorised by all necessary corporate action of the Company,
and such Rights have been duly executed, authenticated, issued and delivered against payment therefor in accordance with the terms of
the applicable Rights Agreement and in the manner contemplated by the applicable Prospectus and by such corporate action (assuming the
securities issuable upon exercise of such Rights have been duly authorised and reserved for issuance by all necessary corporate action),
such Rights will constitute |
valid and binding
obligations of the Company, enforceable against the Company in accordance with their terms.
| 4. | With respect to each issue of Debt Securities pursuant to the relevant Indenture Document and Supplement,
when: (a) the Board has taken all necessary corporate action to approve the issuance thereof, the terms of the offering thereof and related
matters and the execution, delivery and performance of any Supplement and when the Indenture Documents and any Supplement to be entered
into in connection with the issuance of any Debt Securities have been duly authorized, executed and delivered by the Company; and (b)
such Debt Securities issued thereunder have been duly authorised, executed and authenticated, and all other preconditions to the issuance
of the Debt Securities have been satisfied or duly waived, on behalf of the Company in the manner set forth in the relevant Indenture
Document and Supplement relating to such issue of Debt Securities and delivered against due payment therefor pursuant to, and in accordance
with, the terms of the Registration Statement and the Prospectus, such Debt Securities issued pursuant to the relevant Indenture Document
and Supplement will have been duly executed and issued. |
| 5. | With respect to the Warrants, when the applicable Warrant Agreement to be entered into in connection with
the issuance of any Warrants has been duly authorised, executed and delivered by all necessary corporate action of the Warrant Agent and
the Company; and when the specific terms of a particular issuance of the Warrants have been duly authorised and established in accordance
with the terms of the applicable Warrant Agreement and authorised by all necessary corporate action of the Company; and such Warrants
have been duly executed, authenticated, issued and delivered against payment therefor in accordance with the terms of the applicable Warrant
Agreement and in the manner contemplated by the applicable Prospectus and by such corporate action (assuming the securities issuable upon
exercise of such Warrants have been duly authorised, executed and reserved for issuance by all necessary corporate action), such Warrants
will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms. |
| 6. | With respect to the Units, when the applicable Unit Agreement to be entered into in connection with the
issuance of any Units has been duly authorised, executed and delivered by all necessary corporate action of the Unit Agent and the Company;
and when the specific terms of a particular issuance of Units have been duly authorised and established in accordance with the terms of
the applicable Unit Agreement and authorised by all necessary corporate action of the Company; and such Units have been duly executed,
authenticated, issued and delivered against payment therefor in accordance with the terms of the applicable Unit Agreement and in the
manner contemplated by the applicable Prospectus and by such corporate action (assuming the securities relating to such Units have been
duly authorised, executed and reserved for issuance by all necessary corporate action), such Units will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms. |
The foregoing opinions are given based on the following
assumptions and subject to the following qualifications:
| 1. | The originals of all documents examined in connection with this opinion are authentic. The signatures,
initials and seals on the documents reviewed by us are genuine and are those of a person or persons with power to execute the documents.
All documents purporting to be sealed have been so sealed. All copies are complete and conform to their originals. |
| 2. | We have relied upon the statements and representations of directors, officers and other representatives
of the Company as to factual matters. |
| 3. | All information contained in the Registration Statement and all other documents reviewed by us is true
and correct. |
| 4. | The Memorandum and Articles of Association (as defined in Schedule 1) reviewed by us will be the memorandum
and articles of association of the Company in effect upon the issuance of the Securities. |
| 5. | At the time of the issuance of the Class A Ordinary Shares and/or Preference Shares, the Company will
have sufficient authorised and unissued share capital available in order to issue the Class A Ordinary Shares and/or Preference Shares
required to be issued under or pursuant to any Rights Agreement, Warrant Agreement, Unit Agreement or other document or agreement under
the terms of which the Company has agreed to issue Class A Ordinary Shares or Preference Shares. |
| 6. | Each Prospectus, Rights Agreement, Warrant Agreement, Unit Agreement, Indenture Document, Supplement and
the documents or agreements referred to therein, including without limitation, the Warrants, the Units, the Debt Securities and any documents
associated therewith (the "Documents"), will be duly authorised, executed and delivered by or on behalf of all relevant
parties prior to the issue and sale of Class A Ordinary Shares, Preference Shares, the Warrants, the Units, the Debt Securities and Rights
and will be legal, valid, binding and enforceable against all relevant parties in accordance with their terms. |
| 7. | The Company will offer, issue and sell the Securities in the manner contemplated by the relevant Prospectus
and the documents or agreements referred to therein and otherwise in compliance with all applicable United States federal and state securities
laws. |
| 8. | The Company Records (as defined in Schedule 1) are complete and accurate and all matters required by law
and the Memorandum and Articles of Association to be recorded therein are completely and accurately so recorded. |
| 9. | The Company will receive consideration in money or money’s worth for each of the Class A Ordinary
Shares and Preference Shares when issued, such price in any event not being less than the stated par value of each Class A Ordinary Share
and Preference Share. |
| 10. | The Resolutions (as defined in Schedule 1) are and shall remain in full force and effect and have not
been and will not be rescinded or amended. The Resolutions have been duly executed by or on behalf of each Director and the signatures
and |
initials thereon
are those of a person or persons in whose name the Resolutions have been expressed to be signed.
| 11. | Any Rights Agreement, Warrant Agreement, Unit Agreement, Indenture Document, Supplement or other document
or agreement under the terms of which the Company has agreed to issue the Securities will have been duly authorised, executed and delivered
by or on behalf of all relevant parties and will constitute legal, valid, binding and enforceable obligations against all relevant parties
in accordance with their terms. |
| 12. | The choice of the laws of the jurisdiction selected to govern each of the Rights Agreement, the Warrant
Agreement, the Unit Agreement, the Indenture Documents and any Supplement, the Warrants, the Rights, the Units and the Debt Securities,
has been made in good faith and will be regarded as a valid and binding selection which will be upheld in the courts of that jurisdiction
and all relevant jurisdictions (other than the Cayman Islands). |
| 13. | All preconditions to the issue of the Debt Securities under the terms of the relevant Indenture Document
and Supplement will be satisfied or duly waived prior to the issue of the Debt Securities, there will be no breach of the terms of the
relevant Indenture Document and Supplement and the Debt Securities will be issued in accordance with a duly authorised, executed and delivered
Indenture Document and Supplement. |
| 14. | The issue of the Securities will be of commercial benefit to the Company. |
| 15. | No invitation has been made or will be made by or on behalf of the Company to the public in the Cayman
Islands to subscribe for any of the Securities. |
| 16. | There will be nothing in any Supplement which would or might affect any of the opinions set forth above. |
| 17. | The Company was, or will be, on the date of execution of the Documents to which it is a party able to
pay its debts as they became due from its own moneys, and any disposition or settlement of property effected by any of the Documents is
or will be made in good faith and for valuable consideration and at the time of each disposition of property by the Company pursuant to
the Documents the Company will be able to pay its debts as they become due from its own moneys. |
| 18. | No amounts paid to or for the account of any party under the Documents or any property received or disposed
of by any party to the Documents in each case in connection with the performance of the Documents or the consummation of the transactions
contemplated thereby, represent or will represent proceeds of criminal conduct or criminal property as defined in the Proceeds of Crime
Act (as amended) (the "POCA") or terrorist property as defined in the POCA or the Terrorism Act (as amended) (the "Terrorism
Act"), each of the Cayman Islands. |
| 19. | There are no provisions of the laws of any jurisdiction outside the Cayman Islands which would be contravened
by the issuance and allotment of the Securities and, insofar as any obligation expressed to be incurred under any Document or other document
or agreement under the terms of which the Company has agreed to issue |
the Securities is
to be performed in or is otherwise subject to the laws of any jurisdiction outside the Cayman Islands, its performance will not be illegal
by virtue of the laws of that jurisdiction.
| 20. | There is nothing under any law (other than the laws of the Cayman Islands) which would or might affect
any of the opinions set forth above. |
| 21. | The Company on the date hereof, on the date of entry into any Rights Agreement or other documents or agreements
under the terms of which the Company has agreed to issue the Securities and on the issuance of the Securities will be able to pay its
debts as they became due from its own moneys. |
| 22. | Our opinion as to good standing is based solely upon receipt of the Certificate of Good Standing (as defined
in Schedule 1) issued by the Registrar. The Company shall be deemed to be in good standing under section 200A of the Companies Act (as
amended) of the Cayman Islands (the "Companies Act") on
the date of issue of the certificate if all fees and penalties under the Companies Act have been paid and the Registrar has no knowledge
that the Company is in default under the Companies Act. |
| 23. | The term "enforceable"
and its cognates as used in this opinion means that the obligations assumed by any party under a document or agreement are of a type which
the the courts of the Cayman Islands (the "Courts" and each a "Court") enforce. This does not
mean that those obligations will necessarily be enforced in all circumstances in accordance with their terms. In particular: |
| (a) | enforcement of obligations and the priority of obligations may be limited by bankruptcy, insolvency, liquidation,
restructuring, reorganisation, readjustment of debts or moratorium and other laws of general application relating to or affecting the
rights of creditors or by prescription or lapse of time; |
| (b) | enforcement may be limited by general principles of equity and, in particular, the availability of certain
equitable remedies such as injunction or specific performance of an obligation may be limited where a Court considers damages to be an
adequate remedy; |
| (c) | claims may become barred under statutes of limitation or may be or become subject to defences of set-off,
counterclaim, estoppel and similar defences; |
| (d) | where obligations are to be performed in a jurisdiction outside the Cayman Islands, they may not be enforceable
in the Cayman Islands to the extent that performance would be illegal under the laws of, or contrary to the public policy of, that jurisdiction; |
| (e) | a judgment of a Court may be required to be made in Cayman Islands dollars; |
| (f) | to the extent that any provision of a document or agreement is adjudicated to be penal in nature, it will
not be enforceable in the Courts; in particular, the enforceability of any provision of a document or agreement that is |
adjudicated to constitute
a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent
party in the enforcement of the primary obligation may be limited;
| (g) | to the extent that the performance of any obligation arising under a document or agreement would be fraudulent
or contrary to public policy, it will not be enforceable in the Courts; |
| (h) | in the case of an insolvent liquidation of the Company, its liabilities are required to be translated
into the functional currency of the Company (being the currency of the primary economic environment in which it operated as at the commencement
of the liquidation) at the exchange rates prevailing on the date of commencement of the voluntary liquidation or the day on which the
winding up order is made (as the case may be); |
| (i) | a Court will not necessarily award costs in litigation in accordance with contractual provisions in this
regard; and |
| (j) | the effectiveness of terms in a document or agreement excusing any party from a liability or duty otherwise
owed or indemnifying that party from the consequences of incurring such liability or breaching such duty shall be construed in accordance
with, and shall be limited by, applicable law, including generally applicable rules and principles of common law and equity. |
This opinion is limited to the matters referred
to herein and shall not be construed as extending to any other matter or document not referred to herein. This opinion is given
solely for your benefit and the benefit of your legal advisers acting in that capacity in relation to this transaction and may not be
relied upon by any other person, other than persons entitled to rely upon it pursuant to the provisions of the Securities Act, without
our prior written consent.
This opinion shall be construed in accordance with
the laws of the Cayman Islands.
We hereby consent to the use of this opinion as
an exhibit to the Registration Statement and further consent to all references to us in the Registration Statement and any amendments
thereto.
Yours faithfully
/s/ Walkers (Cayman) LLP
Walkers (Cayman) LLP
Schedule
1
LIST OF DOCUMENTS
EXAMINED
| 1. | The Certificate of Incorporation dated 25 February 2021, Certificate of Incorporation on Change of Name
dated 11 July 2022, the Second Amended and Restated Memorandum and Articles of Association of the Company as adopted on 11 July 2022 (the
"Memorandum and Articles of Association") and each of the Register of Directors, Register of Officers and Register of
Mortgages and Charges of the Company (together, the "Company Records"). |
| 2. | The Cayman Online Registry Information System (CORIS), the Cayman Islands' General Registry's online database,
searched on 21 November 2023. |
| 3. | A Certificate of Good Standing dated 21 November 2023 in respect of the Company issued by the Registrar
(the "Certificate of Good Standing"). |
| 4. | A copy of the executed written resolutions of the Directors of the Company dated 17 November 2023 (the
"Resolutions"). |
| 5. | The Registration Statement. |
Exhibit 5.2
|
Davis
Polk & Wardwell llp
450
Lexington Avenue
New York, NY 10017
davispolk.com |
|
|
OPINION OF DAVIS POLK & WARDWELL LLP
ProKidney Corp.
2000 Frontis Plaza Blvd.
Suite 250
Winston-Salem, NC 27103
Ladies and Gentlemen:
We are acting as special United States counsel to ProKidney Corp.,
an exempted company formed under the laws of the Cayman Islands (the “Company”). The Company is filing with the Securities
and Exchange Commission a Registration Statement on Form S-3 (the “Registration Statement”) for the purpose of
registering under the Securities Act of 1933, as amended (the “Securities Act”), (a) Class A ordinary shares,
par value $0.0001 per share (the “Class A Ordinary Shares”) of the Company; (b) preference shares, par value $0.0001
per share (the “Preference Shares”) of the Company; (c) the Company’s debt securities (the “Debt
Securities”), which may be issued pursuant to an indenture to be entered into between the Company and the trustee to be named
therein (the “Trustee”) (the “Indenture”); (d) warrants of the Company (the “Warrants”),
which may be issued pursuant to one or more warrant agreements to be entered into between the Company and the warrant agent to be named
therein (the “Warrant Agent”) (each such warrant agreement, a “Warrant Agreement”); (e) units
(the “Units”), which may be issued pursuant to one or more unit agreements to be entered into among the Company, a
bank or trust company, as unit agent (the “Unit Agent”), and the holders from time to time of the Units (each such
unit agreement, a “Unit Agreement”); and (f) subscription rights (the “Rights”), which may
be issued pursuant to one or more subscription rights agreements to be entered into between the Company and the subscription agent to
be named therein (the “Rights Agent”) (each such subscription rights agreement, a “Rights Agreement”).
The Debt Securities, the Indenture, the Warrant Agreement, the Unit Agreement and the Rights Agreement are collectively referred to as
the “Documents.”
We, as your special United States counsel, have examined originals
or copies of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or
advisable for the purpose of rendering this opinion.
In rendering the opinions expressed herein, we have, without independent
inquiry or investigation, assumed that (i) all documents submitted to us as originals are authentic and complete, (ii) all documents
submitted to us as copies conform to authentic, complete originals, (iii) all documents filed as exhibits to the Registration Statement
that have not been executed will conform to the forms thereof, (iv) all signatures on all documents that we reviewed are genuine,
(v) all natural persons executing documents had and have the legal capacity to do so, (vi) all statements in certificates of
public officials and officers of the Company that we reviewed were and are accurate and (vii) all representations made by the Company
as to matters of fact in the documents that we reviewed were and are accurate.
Based upon the foregoing, and subject to the additional assumptions
and qualifications set forth below, we advise you that, in our opinion:
| Davis Polk & Wardwell llp 450 Lexington Avenue New York, NY 10017 davispolk.com | | |
1. When
the Indenture and any supplemental indenture to be entered into in connection with the issuance of any Debt Securities have been duly
authorized, executed and delivered by the Trustee and the Company; the specific terms of a particular series of Debt Securities have been
duly authorized and established in accordance with the Indenture; and such Debt Securities have been duly authorized, executed, authenticated,
issued and delivered in accordance with the Indenture and the applicable underwriting or other agreement against payment therefor, such
Debt Securities will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles
of general applicability, and may be subject to possible judicial or regulatory actions giving effect to governmental actions or foreign
laws affecting creditors’ rights, provided that we express no opinion as to (w) the enforceability of any waiver of rights
under any usury or stay law, (x) the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law
on the conclusions expressed above, (y) the validity, legally binding effect or enforceability of any section of the Indenture that
requires or relates to adjustments to the conversion rate at a rate or in an amount that a court would determine in the circumstances
under applicable law to be commercially unreasonable or a penalty or forfeiture or (z) the validity, legally binding effect or enforceability
of any provision that permits holders to collect any portion of stated principal amount upon acceleration of the Debt Securities to the
extent determined to constitute unearned interest.
2. When
the Warrant Agreement to be entered into in connection with the issuance of any Warrants has been duly authorized, executed and delivered
by the Warrant Agent and the Company; the specific terms of the Warrants have been duly authorized and established in accordance with
the Warrant Agreement; and such Warrants have been duly authorized, executed, issued and delivered in accordance with the Warrant Agreement
and the applicable underwriting or other agreement against payment therefor, such Warrants will constitute valid and binding obligations
of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’
rights generally, concepts of reasonableness and equitable principles of general applicability, and may be subject to possible judicial
or regulatory actions giving effect to governmental actions or foreign laws affecting creditors’ rights.
3. When
the Unit Agreement to be entered into in connection with the issuance of any Units has been duly authorized, executed and delivered by
the Unit Agent and the Company; the specific terms of the Units have been duly authorized and established in accordance with the Unit
Agreement; and such Units have been duly authorized, executed, issued and delivered in accordance with the Unit Agreement and the applicable
underwriting or other agreement against payment therefor, such Units will constitute valid and binding obligations of the Company, enforceable
in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally,
concepts of reasonableness and equitable principles of general applicability, and may be subject to possible judicial or regulatory actions
giving effect to governmental actions or foreign laws affecting creditors’ rights.
4. When
the Rights Agreement to be entered into in connection with the issuance of any Rights has been duly authorized, executed and delivered
by the Rights Agent and the Company; the specific terms of the Rights have been duly authorized and established in accordance with the
Rights Agreement; and such Rights have been duly authorized, executed, issued and delivered in accordance with the Rights Agreement and
the applicable underwriting or other agreement against payment therefor, such Rights will constitute valid and binding obligations of
the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’
rights generally, concepts of reasonableness and equitable principles of general applicability, and may be subject to possible judicial
or regulatory actions giving effect to governmental actions or foreign laws affecting creditors’ rights.
| Davis Polk & Wardwell llp 450 Lexington Avenue New York, NY 10017 davispolk.com | | |
In connection with the opinions expressed above, we have assumed that,
at or prior to the time of the delivery of any such security, (i) the Board of Directors of the Company (the “Board”)
shall have duly established the terms of such security and the Board and, to the extent required under Cayman Islands law, the shareholders
of the Company shall have duly authorized the issuance and sale of such security and such authorization shall not have been modified or
rescinded; (ii) the Company is, and shall remain, validly existing as a corporation in good standing (to the extent such concept
exists) under the laws of the Cayman Islands; (iii) the Registration Statement shall have become effective and such effectiveness
shall not have been terminated or rescinded; (iv) the Indenture, the Debt Securities, the Warrant Agreement, the Unit Agreement and
the Rights Agreement are each valid, binding and enforceable agreements of each party thereto (other than as expressly covered above in
respect of the Company); and (v) there shall not have occurred any change in law affecting the validity or enforceability of such
security. We have also assumed that the terms of any security whose terms are established subsequent to the date hereof and the issuance,
execution, delivery and performance by the Company of any such security (a) are within its corporate powers, (b) do not contravene,
or constitute a default under, the articles of association or other constitutive documents of the Company, (c) require no action
by or in respect of, or filing with, any governmental body, agency or official and (d) do not contravene, or constitute a default
under, any provision of applicable law or public policy or regulation or any judgment, injunction, order or decree or any agreement or
other instrument binding upon the Company and (ii) any Warrant Agreement, Unit Agreement and Rights Agreement and any security issued
pursuant to any such agreements will be governed by the laws of the State of New York.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York and the federal laws of the United States, except that we express no opinion as
to any law, rule or regulation that is applicable to the Company or the Documents or such transactions solely because such law, rule or
regulation is part of a regulatory regime applicable to any party to any of the Documents, or any of its affiliates due to the specific
assets or business of such party or such affiliate. Insofar as the foregoing opinion involves matters governed by the laws of the Cayman
Islands, we have relied, without independent inquiry or investigation, on the opinion of Walkers (Cayman) LLP, Cayman legal counsel to
the Company, dated as of November 22, 2023 to be filed as an exhibit to the Registration Statement concurrently with this opinion. Our
opinion is, insofar as Cayman Islands law is concerned, subject to the assumptions, qualifications and exceptions contained in such opinion.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement referred to above and further consent to the reference to our name under the caption “Legal Matters”
in the prospectus, which is a part of the Registration Statement. In giving this consent, we do not admit that we are in the category
of persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ Davis Polk & Wardwell LLP
November
22, 2023
Exhibit 23.1
Consent
of Independent Registered Public Accounting Firm
We
consent to the reference to our firm under the caption “Experts” in the Registration Statement (Form S-3) and related Prospectuses
of ProKidney Corp. for the registration of Class A ordinary shares and other securities and to the incorporation by reference therein
of our report dated March 28, 2023, with respect to the consolidated financial statements of ProKidney Corp. included in its Annual Report
(Form 10-K) for the year ended December 31, 2022, filed with the Securities and Exchange Commission.
/s/
Ernst & Young LLP
Raleigh,
North Carolina
November
22, 2023
Exhibit 107
Calculation of Filing Fee Table
FORM S-3
(Form Type)
ProKidney Corp.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward
Securities
|
|
Security
Type |
|
Security
Class
Title |
|
Fee
Calculation
or Carry
Forward
Rule |
|
Amount
Registered |
|
Proposed
Maximum
Offering
Price Per
Unit |
|
Maximum
Aggregate
Offering
Price |
|
Fee
Rate |
|
Amount of
Registration
Fee |
|
Carry
Forward
Form
Type |
|
Carry
Forward
File
Number |
|
Carry
Forward
Initial
effective
date |
|
Filing Fee
Previously
Paid In
Connection
with
Unsold
Securities
to be
Carried
Forward |
|
Newly Registered Securities |
Fees to Be
Paid |
|
Equity |
|
Class A Ordinary Shares, par value $0.0001 per share |
|
Rule 457(o) |
|
(1)(2) |
|
(1) |
|
(3) |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
Fees to Be Paid |
|
Equity |
|
Preference Shares, par value $0.0001 per share |
|
Rule 457(o) |
|
(1)(2) |
|
(1) |
|
(3) |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
Fees to Be Paid |
|
Debt |
|
Debt Securities |
|
Rule 457(o) |
|
(1) |
|
(1) |
|
(3) |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
Fees to Be Paid |
|
Other |
|
Warrants |
|
Rule 457(o) |
|
(1) |
|
(1) |
|
(3) |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
Fees to Be Paid |
|
Other |
|
Rights to purchase Class A ordinary shares, preference shares, debt securities or warrants |
|
Rule 457(o) |
|
(1) |
|
(1) |
|
(3) |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
Fees to Be Paid |
|
Other |
|
Units |
|
Rule 457(o) |
|
(1) |
|
(1) |
|
(3) |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
Fees to Be Paid |
|
Unallocated (Universal) Shelf |
|
— |
|
Rule 457(o) |
|
(1)(2) |
|
(1) |
|
$500,000,000(3) |
|
.00014760 |
|
$73,800(4) |
|
|
|
|
|
|
|
|
Fees Previously Paid |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
Carry Forward Securities |
Carry
Forward
Securities |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
|
Total Offering Amounts |
|
|
|
$500,000,000 |
|
.00014760 |
|
$73,800 |
|
|
|
|
|
|
|
|
|
|
Total Fees Previously Paid |
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
|
|
Total Fee Offsets |
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
|
|
Net Fee Due |
|
|
|
|
|
|
|
$73,800 |
|
|
|
|
|
|
|
|
(1) |
An unspecified number of securities or aggregate principal amount, as applicable, is being registered as may from time to time be offered at unspecified prices and, in addition, an unspecified number of additional shares of Class A ordinary share is being registered as may be issued from time to time upon conversion of any debt securities that are convertible into Class A ordinary shares or pursuant to any anti-dilution adjustments with respect to any such convertible debt securities. |
(2) |
Includes rights to acquire ordinary shares or preference shares of the Company under any shareholder rights plan then in effect, if applicable under the terms of any such plan. |
(3) |
Estimated solely for the purpose of calculating the registration fee. No separate consideration will be received for shares of common stock that are issued upon conversion of debt securities or preferred stock or upon exercise of common stock warrants registered hereunder. The aggregate maximum offering price of all securities issued pursuant to this registration statement will not exceed $500,000,000. |
(4) |
The registration fee has been calculated pursuant to Rule 457(o) under the Securities Act of 1933, as amended. |
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